Volume 68 — Mississippi Reports

From tbe circuit court of Carroll county. Hon. C. H. Cahpbell, Judge. On Saturday morning, December 3, 1889, appellee, Liddell, left Greenwood, his home, to go by rail to the neighboring town of Carrollton. Leaving the omnibus, in which his valise was, he boarded the train, expecting the porter to put it on the cars. Soon after leaving Greenwood, he discovered that the valise was not on the train.

From the circuit court of Lee county. IIoN. Look E. HoustoN, Judge. Appellant brought this suit in the circuit court to recover of ap-pellee for losses claimed to have been sustained by its erroneous transmission of a message sent by him.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. ' The' appellant, Wilson, was a passenger on a train of the ap-pellee, going from New Orleans to Hattiesburg, Mississippi, where he resided. He was accompanied by his little son seven years of age. He had been suffering from a wound on the head and was feeble, but he. had been to New Orleans on business.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Appellees brought this suit to recover of the Illinois Central Railroad Company the value of three shipments of vegetables delivered at Jackson, Miss., to said railroad company, consigned to Pittsburgh, Pa. Two lots thus shipped reached their destination in a totally worthless condition about twelve days after their receipt by appellant.

<p>Statute of Ltmitatioks. Personal injuries. Railroads.</p> <p>Section 2673, co'de 1880, requiring actions for “ assault, battery, maiming, false imprisonment, malicious arrest,” etc., to be brought within one year, does not apply to actions against railroad companies for personal injuries.</p>

From the circuit court of Monroe county. Hon. Lock E. Houston, Judge. Action of trespass instituted by appellee against appellant in April, 1889, for entering upon and cutting down trees and digging ditches on plaintiff's land, and in building and operating a railroad tbereon. The defendant interposed a plea of general issue, and a special plea setting up condemnation proceedings in 1883, prior to the entry, and tender of the amount awarded plaintiff.

From the circuit court of the first district of Hinds county. HoN. J. B. ChrismaN, Judge. Under the provisions of § 608, code 1880, apj)ellant, the Vicksburg and Meridian Eailroad Co., paid a privilege tax and thereby secured exemption from all other taxes on property “ owned and used in operating the railroad.” The land in controversy was owned by the railroad company, being part of the depot ground at the town of Clinton.

Prom the chancery court of Bolivar county. Hon. ~W. B. Trigg, Chancellor. Appellant, Edmondson, filed his bill against the appellees in the court below to cancel a tax deed, alleged to be a cloud upon the title of complainant to certain land. The case was heard on bill, answer and proofs, and a decree was rendered in favor of defendants. As to the question decided by this court, the following facts appear in the record, and were shown in the court below.

From: the circuit court of Scott county. HoN. A. G. Mayers, Judge. The appellant filed his petition before the board of supervisors of Scott county at its regular meeting in March, 1890, praying a reduction in the assessment of certain of his lands.

From the circuit court of Attala county. Hon. C. H. Campbell, Judge. The opinion states the facts. Appellee is liable for the whole tax imposed by the act of 1890, unless this act is void. There being no conflict between this statute and the constitution of this state and of the United' States, it must be enforced as written. The legislative power to tax is an inherent sovereignty and its seeming injustice cannot defeat it.

Fbom the circuit court of Tallahatchie county. HoN. Geobge WinstoN, Judge. The plaintiff in ejectment relied upon a tax-title derived from the state. He introduced the list of lands sold to the state in March, 1883, for the taxes of 1884, which embraced the land in controversy, and then introduced the auditor’s deed to himself, dated March 15, 1886.

From the circuit court of Leflore county. HoN. J. B. ChrismaN, Judge. This suit in ejectment was instituted April 5, 1888, by A. G. McLemore, Mary A., M. F. and T. De Graffenreid against appel-lee, to recover possession of 160 acres of land. Plaintiffs, except McLemore, are children and heirs of one M. T. De Graffenreid, the original owner and patentee of the land, who died leaving eleven children. McLemore has obtained the title of all the heirs except his co-plaintiffs.

<p>1. Witness. Competency. Estate of decedent. Code 1880, § 1602.</p> <p>Where one in possession of personal property, as owner, mortgages it to another, after the death of the grantor a third person asserting a prior title to the property claimed to he superior to the mortgage, is incompetent as a witness to establish his own claim.</p> <p>2. Same. When rule applies.</p> <p>The exclusion is not confined to cases in which the controversy is between the party who would testify and the personal representatives of the deceased, but extends to every assertion of right by such party for any part of the estate left by the decedent and claimed by the witness under an alleged transaction with such deceased person.</p>

Fkom the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor. The only question presented by this appeal is as to the proper compensation of receivers appointed by the chancery court. One S. I. Solomon had been appointed receiver of the property and assets of every description belonging to the mercantile firm of Charles Silverstein & Co., a receiver being necessary pending certain litigation in that court involving said property.

From the circuit court of Ban kin county. HoN. A. G. Mayers, Judge. The opinion states the facts. We concede plaintiff’s right to one-balf of the land. But before he can recover as to the other half, he must at the outset show that he has a right to avoid the sale by Dora and Ella Briggs on account of infancy. This privilege is a personal one. Alsworth v. Cordtz, 31 Miss. 36. But if he can avoid their deed, he can only do so as they could have done.

FbOM the chancery court of the second district of Hinds county. HoN. Warren COWAN, Chancellor. The appellee, Lewis, filed the bill in this case to confirm a tax-title to an undivided half interest in certain land, acquired by him at a sale for taxes in March, 1887. At and before that time, his wife owned the other interest. She and her brother, J. A. Criddle, were tenants in common of the land, each owning an undivided half interest.

From the circuit court of Bolivar county. HoN. Geo. Winston, Judge. This action was begun by attachment by D. E. Rosser, for the use of John Rosser, against J. J. Beck. Certain cotton was levied upon by the writ of attachment which was released to the defendant, upon his giving bond to have the same forthcoming to abide the judgment of the court.

FROM tbe circuit court of the second district of Hinds county. Hon. J. B. Cheisman, Judge. The appellants, B. Lowenstein & Bro., sued out an attachment against the appellee, W. B. Powell. The defendant filed a plea in abatement traversing the grounds of attachment, and on the trial of the issue raised by this plea, the court instructed the jury to find for defendant.

From the circuit court of Madison county. HoN. J. B. Chrism AN, Judge.

From the circuit court of Harrison county. IIoN. S. H. Terral, Judge. The town of Pass Christian, in Harrison county, is made a separate school district.

<p>From the circuit court of the first district of Hinds county.</p> <p>HoN. J. B. ChrismaN, Judge, presided in this case when the demurrer to plaintiff’s replication was overruled, and the HoN. Ralph North, Judge, presided by interchange when the final judgment was rendered.</p> <p>Appellant, Miller, as district attorney, was entitled to certain fees due by persons who had been convicted of misdemeanors in Hinds county, and who, being unable to pay, were placed in the hands of the' county contractor to work out their fines and costs. The contractor was to pay the county, but there was some controversy between him and the county, which was settled by compromise, and in 1885 he paid into the county treasury a certain sum of money in full settlement. In 1886 Miller presented his claim for fees to the board of supervisors for'payment, and the board refused to allow it. Within 'three years from the time of such refusal, but more than three years after the money was paid into the treasury by the county contractor, Miller brought this suit against the county for his fees. ' Besides the general issue, the defendant pleaded the three years’ statute of limitations. Plaintiff replied to the last-mentioned plea that, although the money was paid to the county in 1885, he did not make demand until 1886, which was within three years before his suit was instituted. To this replication a demurrer was overruled. The defendant then rejoined that the cause of action accrued in 1885.</p> <p>The case was submitted to the court without a jury, when the above facts were shown. Judgment being rendered in favor of the defendant, plaintiff appealed.</p> <p>The claim was not barred by the statute of three years. • When the fines and costs are paid into the treasury, under the provisions of § 3161 of the code, the costs and fees of officers are held there as the money of the persons to whom due, and it remains there subject to demand. It is held in the nature of a trust. Suit cannot be brought upon a claim against the county until after it has been presented to and disallowed by the board of supervisors. Code 1880, § 2175; 41 Miss. 236; 51 lb. 68, 731, 878.</p> <p>No adverse claim to the fund arose until after a demand and a refusal to pay. Until the statute authorized it, no suit could be maintained against the county, and the statute of limitations did not run in its favor. Carroll v. Tishamingo County, 28 Miss. 38.</p> <p>The right of action does not accrue until the claim has been disallowed by the board. The officer can legally presume that the county will make no claim to his fees, and could wait indefinitely before applying for the same. Until a refusal to pay, the statute does not commence to run.</p> <p>Counsel also reviewed the statutes to show the liability of the county for the fees of the appellant in this case.</p> <p>The failure of appellant, to present his claim for payment did not operate to stop the running of the statute of limitations. Sec. 2175 of the code of 1880, requiring that the claim shall be presented and payment refused before suit can be maintained, is for the benefit of the county and not its creditors. Presentation under this section is merely a means to procure payment. The right to sue the county is given as an additional remedy. This claim was barred by the three years’ statute of limitations before the suit was begun. 28 Miss. 38; 41 lb. 263; 51 lb. 68, 731, 878; 42 lb. 422, 732 ; 53 lb. 148 ; 64 lb. 254 ; 55 lb. 187; 63 Tb. 178.</p>

From the circuit court of Tunica county. HoN. E. W. Williamson, Judge. The opinion states the case. It was error to sustain the motion of the district attorney. Sec. 2355, code 1880, gave the remedy. It seems the court followed a rule of its own in this matter. An adequate remedy was also furnished by § 3075 of the code.

Feom the chancery court of Lauderdale county. HoN. SylvaNUS EvaNS, chancellor. L. A. Eagsdale, Sr., lived in the city of Meridian, where he owned a large amount of property, real and personal. On June 19, 1886, in due form of law, he executed a will by which he gave a large portion of. his property, including lot 78 in Meridian, to his son L.- A. Eagsdale, Jr., and made certain provisions for his daughters.

From the chancery court of Issaquena county. Hon. W. E. Trigg, Chancellor. In July, 1878, the appellants, Peter Hamilton and eight others, united in the purchase of a large tract of land, then unimproved, and for the purchase-money executed five joint and several promissory notes, due respectively January 1, 1880, and annually thereafter. By the deed the land was conveyed to them jointly.

From the circuit court of Noxubee county. HoN. S. H. Terrel, Judge. This suit was brought by appellants, J. T. Stinson & Co., against S. A. Cunningham, as maker, and S. L. Lee, indorser, of a promissory note. Plaintiifs confessed a demurrer to their declaration interposed by the defendant Lee. An amended declaration was filed, and afterwards a second amended declaration. To each of these the defendant Lee demurred.

From the circuit court of Lauderdale county. HoN. S. H. Terral, Judge. Suit for damages for malicious prosecution. Appellee, Nuckols, was a travelling salesman in the employ of A. Threefoot, Sons & Co., wholesale merchants in Meridian, Miss. He was also authorized to collect for goods sold, and usually made remittances of moneys on hand, whenever he reached places from which this could conveniently be done.

Feom the circuit court of Winston county. HoN. A. G. Mayers, Judge. Metts was tax collector of Winston county for two terms. The first term was 1884 and 1885; the second was 1886 and 1887. He gave a bond for each term, the sureties being different. This suit is upon the last bond for an alleged failure to pay over taxes collected for the state during the last term.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. This is an action of ejectment instituted July 15, 1889, by the Meridian Land & Industrial Co., against Mrs. Gertrude Ball, for the possession of a certain lot in the city of Meridian.

From the circuit court of Holmes county. HoN. C. H. Campbell, Judge. Action of ejectment by appellant, Josephine Eaiford, against appellee for a lot of land in the town of Durant. The defendant, Weems, held possession of the lot by virtue of an execution sale made by a constable under a judgment in his favor against the said Josephine Eaiford, rendered by a justice of the peace.

From the chancery court of Warren county. HoN. Laucii McLauriN, Chancellor. The facts are fully stated in the opinion. The only question in the case is who shall have the homestead, the widow or the children ? This depends upon a construction of § 1277, code 1880. The homestead is an estate created by statute.

From the circuit court of Warren county. How. J. D. GillaNd, Judge. Appellant brought this suit against the United States Express Co. to recover damages for an alleged wilful refusal to receive certain jugs containing whiskey, which appellant tendered to it for. shipment to customers. The express company assigns as its reason for refusing to receive the jugs that they were in an unboxed condition.

FrOM the circuit court of Madison county. Hon. J. B. ChrisMAN, Judge. Several creditors of one Maloney, a merchant, sued out attachments against him, which were levied on his stock of goods in a store-house which he had rented for one year at a fixed rental payable monthly. Another creditor, failing to levy on the goods, caused his attachment to'be levied, among other things, on the unexpired lease.

From the chancery court of Coahoma county. PIoN. 'W. Pc. Trigg, Chancellor. The appellee, Thomas, exhibited the bill in this case to cancel a conveyance of a plantation and certain personal property made by him to the appellant, Dickerson, who had been placed in possession of the property.

From the chancery court of Bolivar county. Hon. W. R. Trigg-, Chancellor. Appellant sought the jurisdiction of chancery to cancel appellee’s claim to certain lands. To establish her title, she introduced a certificate of entry from J. VV.

From tbe chancery court of Noxubee county. HoN. T. B. Graham, Chancellor. The opinion states the facts. Our contention is that the measure of damages between the vendee and a remote covenantor is the price paid by the former. As the appellee has been evicted only as to one-fourth of the land, he can only recover one-fourth of the sum paid, by him therefor.

From the chancery court of Warren county. HoN. Lauch McLauriN, Chancellor. The appellee is the widow of Turner M. Ellis, who, at the time of his death, in 1878, was a resident of the state of Missouri. He had formerly been a citizen of Warren county, Mississippi, but during his residence there his wife and children continued to reside without the state.

<p>1. Trust. Guardian. Use of wards’ money. Trustee in invitum, when protected. Case in judgment.</p> <p>Shelton sold and conveyed land to Laird. $2000 of the consideration was paid hy checks, which were deposited in hank and cashed, and notes were given for the balance. Afterwards he discovered that Laird had drawn the checks as guardian, and had thus misapplied money of minor wards. Without waiting for maturity of the notes, he filed a hill, making Laird, his wards and the sureties on his bond as guardian defendants, prayed for a receiver to collect the rents, that the land be sold to pay the purchase-money, and for a decree protecting the rights of all parties. On demurrer of all the defendants the bill was dismissed. Held, error. Complainant was entitled to relief, either by rescission or by a sale to pay the wards’ money, in order to protect himself against liability incurred by unwittingly receiving trust funds of the minors. Though the sureties did not object, he was not bound to rely upon their responsibility as a protection against this liability to the minors.</p> <p>2. Same. Notice. Chech drawn by guardian. Payee pvt on inquiry.</p> <p>Where one purchasing land in his own name gives the vendor a cheek adding, “ guardian” to his signature, which is paid out of the money of a ward, this is sufficient to put the payee on inquiry, and will charge him as a participant with the guardian in misappropriating the money of his ward, although the payee does not ascertain until after payment that the check was so signed or that the drawer was guardian.</p>

FroM the circuit court of Monroe county. HoN. Lock E. HoustoN, Judge. Matheny, a furniture dealer of Aberdeen, Miss., owned a stock of goods. T. W. and R. B. Stewart recovered a judgment against him February 22, 1889, for $465.86, which was duly enrolled. Before recovery of the judgment, on January 26, 1889, Matheny executed to W. H. Yassar, as trustee, a trust-deed to secure Clifton & Eckford a debt of $750, due thirty days from that date.

Motion in supreme court. Judgment was rendered in the circuit court of Lafayette county against appellants, J. J. Houston et al., in favor of appellee on the 10th day of April, 1889. On June 4, 1889, the parties perfected an appeal to the supreme court by filing a petition and giving bond, without supersedeas. Summons on this appeal, returnable to the October term, 1889, was served the next day on the attorneys of record of the appellee.

From the circuit court of Lafayette county. Hon. WilliaM M. Kog-ers, Judge. The appellee, Mrs. C. Y. Witherspoon, owned a plantation in Lafayette county, Miss. She resided in Louisville, Ky. In October, 1884, she made, a written contract with one I. T. Mason whereby she leased to him said plantation for five years from January 1, 1885, in consideration of a yearly rental of $500, and the tenant was in addition to pay all taxes.

FROM the circuit court of Clay county. HoN. C. H. Campberr, Judge. This was an action of assumpsit by the appellee against T. D. Robertson & Co., a mercantile firm, alleged by plaintiff to be com- ■ posed of T. D. Robertson, S. B. Robertson, and apppellant, W. T. McLemore.

From tbe chancery court of the first district of Yalobusha county. IíoN. B. T. Kimbrough,, Chancellor. The bill in this cause seeks an ascertainment and adjustment of the rights of complainants and defendants in certain lands, and a sale thereof for partition. The lands were owned at the time of his death by one Green Wood, who died intestate in 1861, leaving a widow, Serena Wood, and seven children.

From the chancery court of Monroe’county. HoN. Baxter McFarland, Chancellor.

FroM the circuit court of Warren county. HoN. Ralph North, Judge. The appellant, W. F. Brabston, was indicted for the murder of W. H. Brabston, and appeals from a conviction of manslaughter. The killing occurred in a pavilion at Newman’s Grove, a voting precinct in Warren county, during the progress of a primary election held to select candidates for certain offices.

<p>From the circuit court of Washington county.</p> <p>HoN. George WiestoN, Judge.</p> <p>The appellant was indicted for the murder of one Bowman. During the examination of the first witness on behalf of the state, it developed that the true Christian name of Bowman was Junius Bowman, whereas it appeared in the indictment as James Bowman. Thereupon the court, upon motion of the district attorney, and over the objection of the defendant, ordered the indictment to be amended by substituting the true Christian name for that erroneously written in the indictment. The record does not disclose that there was any actual amendment noted on the face of the indictment. No special grounds of objection to this action of the court were urged by the defendant, but his exception was in general terms, and it does not appear that any application was made for a continuance of the cause on the ground of surprise to the defendant caused by such amendment.</p> <p>The state’s case against the defendant rested mainly on circumstantial evidence, coupled with certain admissions made by the defendant in the committing court, and evidence of certain incriminating remarks made by the defendant at the time of his arrest, which were not denied.</p> <p>The accused and the deceased, both colored men, lived near to each other on the same plantation. It was shown that after the mysterious disappearance of Bowman, the appellant and the wife of Bowman began to cohabit as man and -wife, and during the eleven days which elapsed before the finding of the body they stayed at a neighbor’s house, and the state, over the objection of the defendant, was allowed to prove that they slept during these nights in the same bed. On the eleventh day after the disappearance of Bowman his body was found in a stream or bayou, immediately in front of the appellant’s cabin, and the back of his head was crushed in, as if by an ax or other heavy instrument. Suspicion pointed to appellant, and he was arrested.</p> <p>The circuit court permitted state’s witness, West, to testify, over defendant’s objection, that after the arrest, while the deféndant was under guard, and in the presence of a crowd of persons, the wife of the deceased stated to the defendant, “You killed my husband, and told me you had killed him, and that if I told it you would kill me; that you loved me and would take care of me.”</p> <p>One Sims, a witness for the state, was asked upon the trial if he had heard the defendant make any statement before the justice of the peace in the committing court, and if so what the defendant said on that occasion in reference to the charge against him. Counsel for the defendant objected to this question, because no proper foundation had been laid for the introduction of such evidence by proof that the statement of the defendant had not been reduced to writing. Thereupon the district attorney asked and obtained leave to introduce the justice of the peace, who testified that to the best of his recollection he did not reduce the statement of the defendant to writing; that he did recollect writing the judgment and mitti-mus, but not the statement. Thereupon the state was allowed to prove that the defendant, when arraigned before the magistrate, admitted that he killed Bowman. His version of the killing, as given by himself on that occasion, was that he had gone to the stream to put in a fish box, and that while engaged about this Bowman came up to him with an ax, and a quarrel ensued; that Bowman stuck his ax in the ground, or in a log, and pulled a knife from his pocket and started at him; that defendant thereupon seized the ax and knocked him into the stream.</p> <p>The evidence offered in behalf of the defense disclosed that there had been a difficulty between Miller and Bowman, resulting in bad feeling between • them. The defense also gave in evidence certain threats made by Bowman that he would kill the appellant, which threats were communicated to the appellant.</p> <p>This statement of the facts taken in connection with the opinion will be sufficient for an understanding of the points decided by the court.</p> <p>The defendant was found guilty of murder,'and his punishment fixed at imprisonment in the penitentiary for life.</p> <p>It was not sufficient to order the indictment to be amended. The making of the order does not constitute the amendment, but the indictment itself must be changed by striking out such words as are ordered by the court to be stricken out. Code 1880, 3081; Miller v. The State, 53 Miss. 404. The amendment was improper. Ex parte Bain, 7 U. S. Sup. Ct. Repórter, 871.</p> <p>The evidence that the defendant and the wife of the deceased cohabited after the killing was not competent for any purpose, and only served to prejudice defendant’s case. It was not part of the res gestee and could not serve to show motive. Its only effect was to cause the jury to infer that the defendant had killed the deceased in order to obtain his wife. It was equally incompetent to prove by parol evidence the statement of the defendant at the committal trial. There was no foundation laid for the introduction of secondary evidence. It is conceded that it devolved on the state to show that the statement of the defendant was not reduced to writing. I submit that the testimony of the justice of the peace does not sufficiently show this. He is uncertain about it.</p> <p>The statements of Polly Bowman as detailed by the witness West are clearly hearsay, and should not be admitted. The majority of cases hold that defendants are not bound by statements made by others in their presence though not denied by them. But in this case the reply of the accused was equivalent to a denial. He replied that he would tell what he had to say at the magistrate’s court, and he did make his explanation there, and it is not shown that this was false.</p> <p>(Counsel discussed at length the evidence and also the instructions of the court, contending that the conviction was improper; but in view of the opinion it is deemed unnecessary to set out this argument.)</p> <p>The amendment of the indictment Avas proper. The charge against the defendant ivas not altered. Miller v. The State, 53 Miss. 403; Garvin v. The State, 52 lb. 207.</p> <p>The evidence that during the eleven days intervening betAA'een the disappearance of Bowman and the arrest of Miller, the latter lived with Bowman’s wife and slept with her was of itself material to sIioav motive in the accused to get the deceased out of his way. So also the testimony of West as to Avhat Avas said by appellee Bowman to the appellant was admissible, because it was a charge of guilt calling for a denial. Taken with his failure to deny, it is both competent and very material.</p> <p>The foundation was sufficiently laid for the introduction of parol testimony as to what the accused said before the justice of the peace. The latter swore that according to the best of his recollection he wrote down nothing. This sufficiently proved that the statement was not reduced to writing.</p> <p>Without discussing the instructions in detail, it appears that the case was fairly tried. There is no doubt about appellant’s guilt, and the judgment should be affirmed.</p>

From the circuit court of Lauderdale county. HoN. S. H. Terral, Judge. This suit was instituted in the name of the state, upon the information of Joe Moore, upon the bond of one L. M. Reinach, a licensed retailer of intoxicating liquors in the city of Meridian.

From: the circuit court of Warren county. Hon. J. D. Gilland, Judge. The case is stated in the opinion. It was error to allow Dr. Quin, a witness for the defense, to be asked and to answer the question whether the accused had ever killed a man before. The mere fact that Kearney may have killed another man should not in the least degree militate against the idea that he was a peaceable man, for non constat such killing may have been in self-defense and justifiable.

From the circuit court of Warren county. HoN. J. D. GillaND, Judge. At the July term, 1889, of the court below appellant pleaded guilty to an indictment charging him with unlawfully retailing spirituous liquors. Thereupon judgment was entered suspending sentence as to a fine, but the defendant was taxed with the costs of the prosecution, and it was ordered that he should stand committed until the costs were paid.

<p>FrOM the chancery court of Monroe county.</p> <p>R. C. Beckett, Esq., Special Chancellor by consent.</p> <p>In March, 1888, Gattman & Co. failed, and numerous attachments were sued out against them, among others attachments in favor of appellant Carlisle and appellee Gunn. The latter, through his agent, procured an attachment in Chickasaw county which was levied on the land in controversy, situated in that county. He also prosecuted an attachment on the same debt in Monroe county; and the writ was levied on property there. Subsequently appellant, having obtained an attachment in Monroe county, caused a branch writ to issue to Chickasaw county, and had the same levied on the land previously levied upon by appellee, and which, meantime, had been levied on by others!</p> <p>Before a disposition of tbe attachment suits against Gattman & Co., all the attaching creditors united in a creditors’ bill in the chancery court of Monroe county, seeking to set aside the assignment which Gattman & Co. had made of all their assets. This suit was finally compromised, and a consent decree was entered. Pending the compromise, a controversy having arisen between the creditors who had attached the above-mentioned land, as to the priority of their respective liens, this question was, by express provision in the decree, reserved for future adjudication. The clause of the decree containing this provision will be found quoted in the opinion.</p> <p>Pursuant to the consent decree, the appellee, Gunn, proceeded to take judgment in his attachment suit in Monroe county. Defendants moved to quash the writ of attachment in the suit in Chickasaw county, alleging that there was no affidavit, and that what purported to be an affidavit, was never, in fact, sworn to by Gunn or his agent. Evidence was taken on the hearing of this motion, and the facts in that connection, as deduced by the court from the record, are set out in the opinion. The circuit court refused to disturb the levy, but required plaintiff to file an amended affidavit, which was done, and the cause proceeded to judgment.</p> <p>The question of the priorities between the creditors having levies upon the land in Chickasaw county having been referred to the chancery court of Monroe county, as provided in the decree, this controversy has arisen between Carlisle and Gunn, the former making the same objection previously made by him to the attachment writ of Gunn, viz., that there had been no valid affidavit; and that the amendment made subsequent to the levy by Carlisle could not validate the writ and levy previously made. It is not deemed necessary to state the other points presented by counsel.</p> <p>The decree of the court was in favor of Gunn, giving to his lien priority over that of Carlisle, and from this decree the latter appeals.</p> <p>The rights of attaching creditors as between themselves must depend on strict law, and if one by want of regularity or diligence loses bis priority, no equitable principle can afford bim relief. Drake on Attach. § 262.</p> <p>There can be no valid attachment without an affidavit being made. Ib. § 84. No amendment can supply the entire omission of an affidavit. An amendment presupposes the existence of an affidavit. 2 Douglass, 498; 8 Humph. 12; 1 Wade on Attach. §§ 73, 237.</p> <p>The testimony fails to show the making of an affidavit. It is essential that the oath be administered. It takes two to make an affidavit, the officer and the affiant. The cases relied on by ap-pellee are not those where the oath was not administered but where the affidavit was made but the affiant or officer failed to affix his name. This case lacks the requisites, which in Dunlap v. Clay, 65 Miss. 454, the court said were necessary to constitute an oath, viz., the consensus of the minds of officer and affiant, and a sufficiently formal administration of the oath.</p> <p>The amendment could not affect the lien of Carlisle. While amendments may be made as between debtor and creditor,' they cannot affect adversely other creditors. In a case like this, the lien of senior attacher is postponed to that of the junior. 2 Duvall, 288; 15 Wis. 61; 1 Wade on Attach. §§ 72, 73, 287; Drake on Attach. §§ 113, 262.</p> <p>The amendment of the affidavit was proper and the new affidavit was as valid in all respects as if given at the commencement of the suit. Code 1880, § 2464. The cases cited by appellant are not applicable, especially under such a comprehensive statute as ours. In 2 Douglass (Mich.), 187, there was no affidavit before an officer qualified to administer an oath, nor was there any statute of Michigan authorizing amendment in such a case. In 8 Humph. 12, there was no attempt to file any sort of affidavit.</p> <p>The consequences of a defect in the affidavit must depend on the character of the defect and altogether upon the statute of the state. 1 Wade on Attach. §§ 73, 237.</p> <p>It is clear that under our statute the affidavit was not void, but only voidable. It contains the name of the parties, the amount of the debt, and the grounds of attachment. See Booth v. Rees, 26 Ill. 45. A subsequent attaching creditor is not entitled to the same latitude of objection as the defendant in attachment. Ward v. Howard, 12 Ohio St. 161.</p> <p>In support of the sufficiency of the affidavit and the effect of the amendment, see 30 Iowa, 452; 12 Robinson (La.), 132; 79 Ill. 233; 26 lb. 46; 3 Scam. (Ill.) 361 ; Dunlap v. Glay, 65 Miss. 454; Redus v. Wofford, 4 S. & M. 579 ; Brooks v. Snead, 50 Miss. 416; Green v. Boon, 57 lb. 617; 1 Wade on Attach. 73; Drake on Attach. § 91.</p> <p>The justice of the peace cannot impeach his official act. Stone v. Montgomery, 35 Miss. 83; Word v. Sykes, 61 lb. 649.</p> <p>filed a lengthy brief and written argument, reviewing the authorities above noted in the brief of associate counsel, and making the following additional points and citations on the questions passed on in the opinion. The facts clearly amounted to the making of an affidavit, and if not, it was subject to amendment. Boisseau v. Kahn, 62 Miss. 757.</p> <p>In the authorities relied on by appellant we submit that the word defective is taken in the sense of void, that is that the defects in an affidavit, which would let in intervening rights acquired before amendment, must be such as go to the jurisdiction, and render the proceeding void. Waples on Attach. 105 ; 15 Wis. 68 ; Wade on Attach. § 72; 2 Douglass (Mich.), 93; Drake on Attach. 143 (n. 1), 262 (n. 3), 273 (n. 2); 85 N. Y. 243.</p> <p>A subsequent attaching creditor must show either that the affidavit is void or wholly fails to embody some jurisdictional fact, before the amendment can displace the prior lien. Drake on Attach. 184; Waples on Attach. 104; Pennoyer v. Neff, 95 U. S. 721; Wade on Attach. 413 ; Code 1880, § 2464.</p> <p>The waiver made by Gattman & Co. in the consent decree must be held to be for the benefit of all attaching creditors. Carlisle was a party to the decree and profited by the agreement and waiver, and since, Gattman & Co. cannot object to the validity of the attachment, Carlisle cannot.</p>

FroM the chancery court of Leflore county. HoN. WarreN CowaN, Chancellor. The land in controversy, situated in Leflore county, was sold, to the state for non-payment of taxes July 6, 1867. After that, and while the land was so held or claimed by the state, it was, in 1870, sold to the liquidating levee board for levee taxes claimed to be due thereon. On February 19, 1873, the appellee, Mary G-.

FROM the circuit court of Perry county. HoN. A. G. Mayers, Judge. This case was tried before tbe court without a jury on the following agreed statement of facts:— I. L. Lyon & Co. had a debt against O. E. Bufkin, upon which they recovered judgment in an attachment suit. The defendant had been doing business as a merchant in his own name in the store-house where the goods in controversy were found and levied upon.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. Kinney & Co., of Nashville, Tenn., having a debt against Ed. Carroll, of Aberdeen, Miss., in order to collect the amount, drew on him through Gattman & Co., bankers at Aberdeen. The draft was received on the 7th day of March, 1888, and the agent of the bank presented it to Carroll on the same day; and he, being a customer, took up the draft by giving a check on the bank.

From: the circuit court of Covington county. HoN. A. G. Mayers, Judge. On the 26th day of March, 1885, one Posey executed a trust-deed, whereby to secure a certain indebtedness to Thomas Biglane, he conveyed to a trustee certain personal property, including a horse the subject of the controversy in this case.

Feom the circuit court of Leflore county. Hon. J. B. Chelsman, Judge. The appellees, Mrs. Ellen E. Bew and Mrs. Ella S. Bew, composing the firm of J. T. Bew & Co., were merchants doing business at Shell Mound and at Shannondale, Leflore county, Mississippi. They were also engaged in planting in said county.

From the circuit court of Hancock county. HoN. S. H. Terral, Judge. Under a decree of the chancery court of Hancock county in partition proceedings, a commissioner was appointed to sell certain lands situated in said county at public outcry for cash, in order to divide the proceeds among the owners.

From the circuit court of Monroe county. Hon. Look E. Houston, Judge. J. B. McKinney was elected treasurer of Monroe county for an unexpired term, and gave bond and qualified April 4, 1881. In November of that year he was elected for the succeeding term of two years, beginning the first Monday in January, and qualified by giving bond on January 2, 1882. He continued in office until January 2, 1884, when his successor qualified.

From the circuit court of Adams county. HoN. Ralph North, Judge. On the 12th day of January, 1883, William EL, Beatrice, Kate, and Ida Dunbar, leased in writing to M. E. Jackson certain land in Adams county, for the term of six years for a certain rent, which was made payable to the lessors jointly. Afterwards the lessee died, and this suit was brought against W. L. Jackson, the executor of the will, to recover rent claimed to be due.

From the circuit court of Marshall county. R. S. Stith, Esq., Special Judge. In 1880 Parker and wife owned certain land and gave a trust-deed thereon to secure a debt to appellant, Eason. In 1882, default being made, the land was sold under the trust-deed, when Eason became purchaser, receiving a deed.

Fbom the circuit court of De Soto county. HoN. James T. Faiit, Judge. The opinion states the facts.

FboM tbe circuit court of Harrison county. HoN. S. H. Terral, Judge. Smith sued Covel in a justice court on an open account, verified by oath as provided by § 1627, code 1880. Defendant, filed an affidavit denying the corectness of the account, and also filed as a set-off an open account against the plaintiff, which was likewise duly verified by affidavit. Plaintiff failed to deny by affidavit the correctness of this account.

<p>1. Attachment. Act of 1884. Intervention of creditor; when, allowed.</p> <p>The right conferred, by the act of March 11, 1884 (Laws 1884, p. 76), upon a creditor to intervene and defend in lieu of the defendant in an attachment suit by another creditor against their common debtor, cannot be availed of after rendition of judgment in the attachment suit.</p> <p>2. Same. Receiver; may intervene in behalf of creditors.</p> <p>Although, by the language of said act of 1884, the right to intervene is conferred only on creditors, a receiver, who, by the circumstances of his appointment, is made the representative of creditors interested in a fund in his hands, may exercise for such creditors the right to intervene and defend an attachment suit against the common debtor which seeks to subject the fund.</p>

FroM the circuit court of Perry county. Hon. A. G. Mayers, Judge. The facts are stated in the opinion. 1. The verdict should be set aside because the jury failed to separately assess the value of the two horses. The argument that this requirement does not apply to the ease of match horses is unmatched; besides there is no proof that they were match horses. This requirement of law was not waived by the simple agreement that any informality in the verdict should be disregarded.

FROM the circuit court of Monroe county. Hon. Lock E. Houston, Judge. One Hayes, a merchant at West Point, Miss., was in a failing condition, and wished to prefer Robert Howe, a wholesale merchant in Cincinnati, Ohio, to whom he owed 'a debt of $2100. It was arranged between them that Howe should go to West Point, and consummate an agreement by.which the debt of Hayes should be secured.

From the circuit court of Marion county. Hon. S. H. Terral, Judge. Usury can only attach to a loan of money, or to the forbearance of a debt.

<p>From the circuit court of Lauderdale county.</p> <p>HoN. S. H. Terral, Judge.</p> <p>By an act of the legislature, approved March 16, 1886, entitled, “ An act to encourage and facilitate the construction of telegraph, telephone and other like lines in the state of Mississippi,” it was provided, among other things, that any telegraph company desiring to construct its lines along the right of way of any railroad in this state, and failing to obtain by negotiation such right of way, might obtain the same by condemnation proceedings. The act provides that such telegraph company may file its petition in the office of the clerk of the circuit court of any county in which a portion of the railroad is located, and obtain a writ commanding the sheriff to summon nine good and lawful men, citizens of the county, from whom five commissioners shall be chosen to make assessment “of the due compensation for the cash value and actual damage which the owner or owners of said .... railroad .... shall be entitled to have for the appropriation thereof to the use of the petitioner.” In another part of said act it is provided that no evidence shall be received in respect to the title or ownership of the property, or upon any question other than that of the cash value of the lands sought to be appropriated by the telegraph company, and “ the injuries then necessarily known to result to said railroad company as the necessary and immediate consequence of the appropriation sought.”</p> <p>It is further provided that after return of their report to the clerk of the circuit court, either party may by motion to the judge of the circuit court obtain a new inquest and assessment, provided “the judge shall be of the opinion that the commissioners acted upon testimony that Avas irrelevant or incompetent, and that their award was contrary to the laAv and such evidence as Avas competent and relevant, and that injustice has been done.”</p> <p>The appellant, desiring to construct a line of telegraph across the state of Mississippi, along the right of way of the appellee, the Alabama and Yicksburg EaÜAvay Co., filed its petition under the said act of 1886 to have the necessary assessment by commissioners of the value of the right of Avay and actual damage to the railroad company. To this petition the railroad company filed a demurrer, assigning, among other causes, that the said statute is unconstitutional in that it provides for the assessment of damages by a commission of five, instead of a jury of twelve men. The demurrer was overruled. Commissioners were selected, and evidence introduced before them. "Witnesses in behalf of the petitioner testified that the cash value of the land sought to be appropriated was between two and three dollars per acre; that the -land occupied by the telegraph poles would be all that petitioner would appropriate, and that there could not be any actual damage to the railroad company by reason of the construction and maintenance of such line of telegraph.</p> <p>In behalf of the raih’oad company it was shown that its right of way was already occupied by the lines of the Western Union Telegraph Co., with which said company had a traffic arrangement mutually beneficial to them. It was also shown that advantages would accrue to the telegraph company by building along the right of way of the railroad rather than along the public highway, these benefits accruing both during the erection and afterwards in the operation of the telegraph line. But the evidence submitted by the appellants contradicted this view.</p> <p>A superintendent of the Western Union Telegraph Company testified as to the contract between his company and the appellee, and stated as the result of his long experience that the right of way for his company along the right of way of the railroad company was worth to the latter company as much as $200 per mile. A superintendent of a railroad was also introduced, who testified that from his experience as to the benefits to a telegraph company in constructing and operating its line along that of a railroad, such right of way was of the value of $100 per mile.</p> <p>The commissioners by their award gave to the railroad company damages at the rate of $40 per mile, the aggregate award for the right of way across the state of Mississippi being $5680. The petitioner, the telegraph company, has prosecuted this appeal from the judgment of the circuit judge overruling its motion to set aside the award and order a new assessment.</p> <p>The awai’d of the commissioners should have been set aside. Ap-pellee was entitled only to the loss sustained by it by the appropriation of its property to the use of the appellant. It was entitled to the value of the property at the time of its appropriation and the injury resulting to it as the necessary and immediate consequence. Isom v. R. R. Co., 36 Miss. 300.</p> <p>In view of the explicit provision as to what evidence should be receivable, it was error to allow evidence of the contract between the Western Union Telegraph Co. and the appellee. The argument is that the railroad company is entitled to $200 per mile, because its contract with the Western Union is worth that much to it. Such an exclusive contract is held generally to be void as against public policy, and the railroad company has no right to base any legal claim upon the value of such an illegal contract.</p> <p>Independently of the act of 1886, it is. incompetent to prove anything else than the difference in value before and after the improvement. Mills on Eminent Domain, § 159; 16 Barb. 273; 37 Iowa, 99; 68 Mo. 294; Levee Convrs. v. Harlderoads, 62 Miss. 807.'</p> <p>The inquiry should be, what would make the owner whole? 39 lb. 23. The question is not, what is the value of the land to the party condemning the land. 127 Mass. 358 ; 137 lb. 163; 5 Nev. 358; 31 Minn. 297.</p> <p>The just compensation secured by the constitution need not exceed the injury suffered. Pierce on Railroads, 221; Sedgwick, Meas. Dam. 662.</p> <p>The defendant is entitled to his own losses, not the petitioner’s gains. Sullivan v. Lafayette County, 61 Miss. 271; 89 U. S. 403.</p> <p>It is competent for a railroad company to build itself, or by contract with some other company, a telegraph line necessary along its route. 19 Kan. 520; 89 Ind'. 525; 136 Mass. 75.</p> <p>It was competent, then, for the appellee to contract with the Western Union Telegraph Co. to build and maintain a line of telegraph along its right of way. It was perfectly competent for the commissioners to consider the advantages to the railroad company of the competing line of telegraph along its right of way. The appellee was under no obligation to appellant, and was authorized to treat with it as with any other person bargaining for the facilities it had to offer. The appellant was not compelled to go along the appellee’s right of way, but if it seeks to condemn the entire right of way through the state along appellee’s road, it should pay for the full value such a line would be to the railroad company, and the damages which the railroad company would necessarily sustain. ' It is evident that the commissioners did not proceed on wrong principles in reaching their conclusion. Their award is reasonable and very favorable to the petitioner. No cast-iron rule can be laid down to cover all imaginary cases. The act itself provides for evidence as to the cash value and the injury sustained by the railroad company. The meaning of just compensation is that the owner of the thing taken shall be made whole. Henry v. Railroad Co., 2 Iowa, 300; 78 Pa. St. 454; 1 Sutherland, Dam. 17.</p> <p>It is sometimes very difficult to establish a rule that shall be entirely just and equitable. Cooley on Con. Lim. § 699; 22 N. J. 495.</p> <p>Petitioner did not bring itself within the rule prescribed by the act for obtaining a new assessment. The commissioners were not bound by the evidence of experts or the apparent weight of evidence, but could give their own conclusion. Mills, Em. Dom. 246. They were authorized to consider every fact in making up their award, and the court cannot set it aside unless injustice has been done.</p>

From the circuit court of Monroe county. HoN. Look E. HoustoN, Judge. This suit was begun before a justice of the peace upon the following instrument:— “ I am due Charles Swanson $500 for value received. I agree to pay the same by November 1st, 1893. I agree to pay as much as $100 per annum, payable November 1st of each year, and beginning November 1st, 1888.” February 16,1888. ' ' Gus GriffiN.

From the chancery court of tbe second district of Chickasaw county. HoN. Baxter McFarlaND, Chancellor. S. J. and C. C. Jolly were partners in the retail liquor business under the firm name of S. J. Jolly & Co., and were duly licensed. One Moneghan purchased the interest of C. C. Jolly and the business was continued by S. J. Jolly and Moneghan under the same license and the same firm name.

From the chancery court of Wilkinson county. HoN. Claude Pijsttard, Chancellor. The appellant, D. C. Bramlett, purchased certain lands at execution sale, and received a deed from the sheriff in the usual form. Afterwards he conveyed a half-interest in said lands to one Fitts by a quit-claim deed. In the descriptive clause of said deed, the lands, besides being particularly described, are referred to as the same lands purchased by Bramlett at the execution sale.

Prom the circuit court of Monroe county. HoN. Look E. Houston, Judge. Ledbetter, the appellee, desiring to obtain license to retail intoxicating liquors in Aberdeen, Monroe county, filed a petition with the corporate authorities, as provided by chap. 39, code 1880.

From the circuit court of Harrison county. Hon. S. H. Terral, Judge. A foreign vessel loaded with lumber was stranded off the Mississippi coast, and in this condition the vessel and cargo were inspected by the wardens of the port of New Orleans and a sale thereof recommended for account of whom it might concern. Pursuant to this order or recommendation, the vessel and cargo were sold in that city by a duly licensed auctioneer and purchased by appellees.

FjrOM the circuit court of Clay county. Hoy. C. H. Campbell, Judge. This action was instituted in the first district of Chickasaw county, and a trial had there resulted in a verdict and judgment for the defendant. This judgment was reversed on appeal because of the erroneous action of the court in excluding certain testimony.

From the circuit court of Prentiss county. HoN. Look E. Houstoh, Judge. The indictment in this case charges that the appellant, Maxwell, “ did in the night time wilfully and feloniously set fire to and burn” certain goods. A motion to quash was overruled, and from a judgment of conviction the defendant appeals.

<p>From the circuit court of Copiah county.</p> <p>HoN. J. B. Chris MAN, Judge.</p> <p>The appellant, Welch, was indicted for the abduction of a female over the age of sixteen. To this indictment he pleaded in abatement that an attorney employed to prosecute before tlie committing court went before the grand jury that found the indictment and made a speech to the jury, urging the finding of an indictment. To this plea the state filed a replication, admitting that said attorney had gone before the grand jury, but averring that he went in obedience to a regular summons directed to him as a witness. The accused filed a rejoinder, alleging that said attorney, though summoned as a witness before the grand jury, had procured himself to be summoned. The court sustained a demurrer to this rejoinder, and the accused, having been tried on his plea of not guilty and convicted, prosecutes this appeal.</p> <p>The state in its replication failed to deny the allegation in the plea that the attorney, admitted into the grand jury room as a witness, made a speech to them. The demurrer should have been overruled. Durr v. State, 53 Miss. 426.</p> <p>The rejoinder of the-accused does not negative the good faith of the attorney in procuring himself to be summoned as a witness. Nor does it appear that he was, after the committing trial, interested as a prosecuting attorney. It is submitted that if the act of a stranger, who in . good faith procures himself summoned, goes before the grand jury and urges an indictment, will avoid the indictment, it will always be in the power of designing persons to get in some sort of speech in that way.</p> <p>It is believed the court has gone to the fullest limit in Durr v. State, 53 Miss. 427. Here the attorney, having attended the committing trial, was doubtless a competent witness, although without personal knowledge. If he expressed his belief of the state’s witnesses, and urged the finding of an indictment, who can measure the harm done ? I submit there is nothing substantial in the plea.</p>

FROM the circuit court of Jones county. HoN. A. G. Mayers, Judge. The facts are stated in the opinion. 1. The facts do not warrant a verdict of guilty of murder. The piece of plank cannot be regarded as a deadly weapon when thrown at a person eight or ten feet off. It was a mere casualty that it happened in this case to produce death. 2.

From the circuit court of Covington county. HoN. A. G. Mayers, Judge. Appellant was convicted of carrying a concealed weapon contrary to § 2985, code 1880. There is no conflict in the evidence. One Webster, who was sheriff of Covington county, gave his pistol to appellant for the purpose of having it repaired.

FROM tbe circuit court of Coahoma county. Hon. George Winston, Judge. The opinion sufficiently shows the point decided. Ownership of the property stolen must be proved as laid in the indictment. If laid in several, proof of ownership in one is insufficient. 2 Bish. Cr. Pro. § 723; Murphy v. State, 24 Miss. 594. The property was in the possession of Weathersby, and he owned at least a half interest in it. It was right to lay ownership in him. 2 Buss, on Cr. 160.

From the circuit court of Webster county. IíoN. C. H. Campbell, Judge. Section 2754, code 1880, is as follows : “Any person who shall seduce and have illicit connection with any female child under the age of sixteen years, of previous chaste character, shall upon conviction be imprisoned in the penitentiary not more than ten years.” The appellant, Richardson, was convicted under this statute.

FROM tbe circuit court of Union county. HoN. W. M. Bogers, Judge. The appellee, Holland, brought this suit against appellant to recover the value of a jackass, which he had shipped from Memphis, Tenn., over appellant’s railroad, to be delivered at New Albany, Miss., and which died on the route. The animal was shipped along with four mules under a special live-stock contract.

From the circuit court of the second district of Yalobusha county. HoN. W. M. Eoqers, Judge. This action was brought by plaintiff for the recovery of damages for the killing of her husband by defendant’s cars while he was upon the track of defendant in the town of Water Valley.

From the circuit court of Leflore county. HoN. R. W. WilliamsoN, Judge. Action for the value of a colt killed by defendant’s running train. Plaintiff rested his case upon evidence of the value of the colt, and that it was found dead upon the track of defendant’s railroad, and that the marks along the track indicated that it had been carried by the engine a distance of 75 or 100 yards from where it was first struck.

From the chancery court of Panola county. HoN. J. Gr. Hall, Chancellor. The case is stated in the opinion. It is admitted that the gravel was necessary, and the gravel-pit was the most convenient one at the time for appellant.

From the circuit court of the second district of Chickasaw county. HoN. Lock E. HoustoN, Judge. Appellee, Gunn, brought this action against the appellant company to recover the value of a mule killed by its running train. The testimony for the plaintiff tended to show that the mule ran a distance of 300 yards upon the track before being overtaken and killed.

From the circuit court of Coahoma county. HoN. B. W. WilliamsoN, Judge. Appellee, with two other women, was walking upon the track of appellant’s railroad and reached a trestle 212J feet long. She knew it was after the time for the passing of the passenger train and supposed it had passed, but admitted that she knew it was sometimes behind time.

FROM the circuit court of the first district of Hinds county. HoN. J. B. Chrismah, Judge. The appellant was tried at the June term, 1890, of the circuit court, and convicted under an indictment charging him with the embezzlement of $315,61*2.19, received as treasurer of the state of Mississippi. The indictment contains three counts, the substance of each being set out in the opinion of the court.

<p>From tbe chancery court of Adams county.</p> <p>J. J. Whitney, Esq., special Chancellor by consent.</p> <p>Appellants filed them bill in this cause against tbe Natchez Water & Sewer Company, and against certain creditors of said company, alleging that complainants are holders of certain second-mortgage bonds executed by the Natchez Water & Sewer Company. The mortgage was exhibited with the bill, and it recites on its face that it was executed by the directors and officers of the company by authority of a resolution of the stockholders, adopted at a meeting held in the city of Natchez, in this state. The said company is a corporation created under the laws of the state of Kansas for the purpose of building and operating a system of water-works and sewerage in Natchez, Mississippi.</p> <p>The bill further alleged that the assets of the company were wholly insufficient to pay mortgage debts; that the company was in a failing condition, and would not be able to continue its business and carry out its contracts with the city of Natchez and with its other patrons; that, while default under the mortgage had not taken place, it was certain to occur very soon; that many creditors of said company, who were without liens, had sued out attachments, and had levied upon the mortgaged property, and had garnished the debts due to the company, which debts were also covered by the mortgage; that it had become impossible for said company to collect its revenues, and it was without resources to carry on its business, and that its property and franchises were in imminent danger of waste and loss.</p> <p>All the persons interested were made parties to the suit. The prayer of the bill is that a receiver be immediately appointed to take possession and control of all the property, privileges and franchises of the water and sewer company, and to operate the same and collect the revenues, under the direction of the court, for the benefit of all parties concerned. The Natchez Water & Sewer Company, by its president, consented in writing to the appointment of a receiver as prayed for in the bill, and a receiver was appointed in vacation. At the ensuing term of the chancery court, the defendants, who had procured attachments to be levied, moved the court to vacate and rescind the order appointing a receiver, and affidavits were submitted in support of the motion. At the same term the said defendants filed demurrers to the bill upon the ground that the facts stated therein did not entitle complainants to any relief. The demurrers were sustained and the bill dismissed. The motion to remove the receiver was sustained, but it was agreed by counsel for all the parties that in the event of the reversal of the decree, the receivership should be continued without objection.</p> <p>1. If it be conceded that shareholders cannot meet in any state, this would not affect the validity of the mortgage, because the assent of the stockholders is not essential to its valid execution. The directors may transact all business of a corporation, and incident to the power to contract debts is the power to secure the same by mortgage. 1 Morawetz on Priv. Cor. 346, 510, 511.</p> <p>It is sometimes provided that the assent of a certain number of shareholders shall be obtained before directors may incumber the property of a corporation, but even this provision is for the benefit of stockholders, and its non-observance concerns no one else, and no other creditors of the corporation can object to the mortgage on that ground. 28 Fed. B,ep. 169; 33 Hun, 333; 104 Ill. 462 ; Cook on Stock and Stockholders, 689.</p> <p>It is generally conceded that a board of directors may meet and act anywhere. In the absence of any state law or by-law restraining them, why cannot shareholders themselves come along and assent to the action of the board of directors?</p> <p>The case of Aspinwall v. R. R. Co., 20 Ind. 492, stands alone and in conflict with the whole tenor of modern decisions. See Camp v. Byrne, 41 Mo. 525; Ohio, etc., Ry. Co. v. McPherson, 35 lb. 13; Heath v. Mining Co., 39 Wis. 146.</p> <p>2. It is needless to argue that a court of equity has power to preserve through a receiver property subject to a mortgage, which is being suffered to go to waste and decay. It is not necessary that a present right of foreclosure should exist. It is not argued that the bill fails to show the injury with sufficient clearness. A general demurrer such as this could not reach an objection on that, ground. The ends sought clearly called for the interposition of the chancery court.</p> <p>The meeting of shareholders in Natchez was unauthorized and void. Angelí & Ames on Corporations, 104, 274, 498; Field on Corporations, 243; 4 Am. & Eng. Enc. of Law, 185, 207; 1 Morawetz on Priv. Cor. 533; Cook on Stock & Stockholders, 591.</p> <p>By the statute of Kansas it is enacted that every corporation shall keep a general office within that state, and have at least three of its directors resident citizens of that state, and that the records and books of the corporation, the office superintendent, secretary, etc., shall be kept in the general office. Statutes of Kan., 1889, §§ 1190, 1196.</p> <p>It is the law of that state that private corporations whose charter has been granted by one state cannot hold meetings and pass votes in another state. Land Gh'ant, ete., Co. v. Coffee Co., 6 Kan. 245.</p> <p>2. If the mortgage in this case were valid, the demurrer was rightly sustained because no default occurred under it such as would authorize a foreclosure. Even as late as the hearing of the demurrer, default had not occurred. By the terms of the mortgage, until default, the water and sewer company was to retain possession and control of the mortgaged property.</p> <p>If the averments of the bill as to the embarrassment of the company growing out of attachments are to be considered on demurrer instead of more properly in connection solely with the relief other than foreclosure, they do not constitute such a categorical allegation of the impossibility of the mortgagors keeping their engagements, as would induce the court to depart from or add to the terms of forfeiture expressly contained in the mortgage.</p> <p>The directors did not have the power irrespective of stockholders to execute this mortgage. It involved the exercise of the extraordinary power of transferring the entire property of the corporation, its franchise and privileges. It is a power reserved to stockholders to transfer the whole corporate property. Cook on Stock & Stockholders, 625; Mdman v. Bowman, 58 Ill. 444; 15 Am. & Eng. By. Cas. 1, 53; 1 Morawetz on Priv. Cor. 512.</p>

From the circuit court of 'Wilkinson county. IloN. Kalph North, Judge. Appellant is the claimant of the personal property in controversy which has been seized under an execution against her husband, Hugh L. Davis. She derives her title to the property from him by a deed, which was duly acknowledged and recorded.

From the circuit court of Lincoln county. HoN. J. B. ChrismaN, Judge. The facts of this case as found by the court from a voluminous record are stated in the opinion. Among other things, the court instructed the jury for plaintiff, in accordance with § 1059, code 1880, that proof of injury caused by the running train of defendant was prima facie evidence of negligence, and imposed upon defendant the burden to disprove the presumption of negligence.

From the chancery court of Itawamba county. HoN. Baxter McFarland, Chancellor. Appellee, Warren, filed the bill- in this cause to confirm a tax-title. The tax collector’s deed conveyed to him “ 80 acres of the S. E. ¿, sec. 10, T. 8, R. 8., in Itawamba county.” The bill alleged that the land intended to be sold and conveyed by this description was the N. of the S. E. £ of said section.

<p>1. Railroads. Transportation of live stock. Special contract. Case.</p> <p>Where, under a special freight contract, a railroad company furnishes an entire box-car to a shipper, who loads it with “emigrant movables” and several horses, the contract requiring him to load and unload the car and to accompany it, and feed, water and care for the stock, all at his own risk and expense, and exempting the company from liability for delays of the train, and there is no agreement as to any lay-out along the route, and the stock can be fed and watered without leaving the car, the owner does not, in the absence of a custom to that effect, acquire by such contract the right to have the car stopped and laid out along the route that he may rest his horses and re-arrange his load.</p> <p>2. Same. Special contract. Right to stop and unload.</p> <p>If, by the owner’s method of arranging the horses in the car, they can only be taken out with great trouble and delay, and a lay out on the route becomes necessary to save the horses from suffering or death, this does not entitle the owner, shipping under such contract, to demand that the car be laid out and afterwards carried under the same contract. The owner can only secure such delay by abandoning his contract, or by contracting anew for the use of the car for a longer time. If he does not do this, the company may refuse to lay out the car and is not liable for injury to the animals caused by the continuous journey.</p> <p>3. Failure to Unload and Water Live Stock. Rev. Stat. U. S. § 4386.</p> <p>In an action by such shipper against the railroad' company to recover for injury to live stock caused by its failure to allow such lay-out, whereby the stock died, the right of the parties will not be measured or affected by § 4386 Rev. Stat. of the U. S., which provides that animals transported on railroads shall he unloaded, watered, fed and rested at certain intervals, and provides a penalty, recoverable in the federal court, for every violation of the act. The state courts are in no way concerned with the enforcement of this statute.</p>

From tbe circuit court of tbe first district of Hinds county. Hon. J. B. ChrismaN, Judge. On March 13, 1890, plaintiff, a lady, purchased a ticket from Brandon to Pearson, both on appellant’s line. Pearson was a flag-station where there was no depot, and no platform or other accommodations for passengers, but trains stopped there as occasion required for passengers to get on and off, and a post-office was located there.

C. H. Campbell, Judge, on habeas corpus. The appellee, Solomon Slomberg, was convicted before the mayor of the town of Kosciusko under an ordinance of said town, which is set forth in the opinion of the court. He refused to pay the fine imposed, and sued out a writ of habeas corpus before the circuit judge, who, upon the hearing, discharged him from custody, upon the ground that the ordinance under which the conviction was bad was void.

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

FROM the circuit court of Attala county. HoN. C. H. Campbell, Judge. Ejectment by appellant against appellees. On the trial it was not controverted that the plaintiff was originally the owner of a tract of 240 acres, including the 40-acre tract in controversy. The defendants claim under a parol gift from the plaintiff, entry thereunder and continuous adverse possession foi’ more than ten years before the institution of this suit.

From the chancery court of Rankin county. HoN. H. C. CoNN, Chancellor., Appeal from decree sustaining demurrer to a bill. The facts alleged by the bill and admitted by the demurrer are as follows:— In August, 1885, appellees, defendants in the court below, recovered a judgment against W. H. Berry and his wife, who then jointly owned and occupied the land in controversy as a homestead.

From the circuit court of Warren county. HoN. J. D. GillaND, Judge. The case is fully stated in the opinion. 1. The act of 1890 authorized the revenue agent to sue for delinquent revenue. The evil to be remedied was the then existing delinquent revenue which could not be collected by reason of the time having passed for the use of the special remedies provided by law. The statute covers delinquencies prior as well as subsequent thereto.

From tbe circuit court of the first district of Hinds county. HoN. J. B. Chrism AN, Judge. In 1886, appellant, Dederick, sold and delivered to Wolfe and wife a hay press for the sum of $450, taking their three notes for $150 each, payable at one, two, and three years respectively. Two of the notes were paid.

<p>From the circuit court of Yazoo county.</p> <p>Hok. J. B. Chrismak, Judge.</p> <p>Appellees, Robson, Block & Co., had a judgment against E. S. Harris. On November 4,1890, execution thereon was levied upon certain goods in a store at Deasonville, Yazoo county, Miss. The goods were claimed by M. A. Harris, ivife of the defendant in execution, and an issue was made up and tried as to the right of property. On the trial there was testimony tending to show that the mercantile business in which the goods were used was transacted by and in the name of M. A. Harris as owner, and that her husband, E. S. Harris, was merely a clerk in the store. The only sign at the place of business was “ Alliance Store,” which had been put up by a former owner.</p> <p>On behalf of plaintiffs, it was contended that the defendant in execution, E. S. Harris, was transacting the business with no other sign than that stated above, and that under § 1300, code 1880, the property used in such business thereby became subject to his debts. It was also contended that the goods were in fact his, plaintiffs’ evidence seeking to show that they were fraudulently purchased in the name of the wife; but it is not deemed necessary to state the facts as to this, since the whole case was made to turn upon the effect of § 1300, under the following instruction which was given for plaintiffs:—</p> <p>“If the jury believe from the evidence that E. S. Harris, the judgment debtor, conducted the mercantile business at Deasonville from February 1,1890, to the time when the levy was made on the stock of goods under execution, and if they believe from the evidence that there was no sign, except the sign ' Alliance Store/ and no sign showing that E. S. Harris was the agent of his wife, Mrs. M. A. Harris, the stock of goods levied on were liable to execution in favor of plaintiffs, and they must‘find in favor of plaintiffs in the judgment.”</p> <p>The jury found for plaintiffs, and judgment was entered accordingly, from which the claimant appealed.</p> <p>Section 1300 of the code of 1880 is as follows:—</p> <p>“ If any person shall transact business as a trader or otherwise, with the addition of the words ‘ agent/ ‘ factor/ and ' company/ or 'and co./ or like wolds, and fail to disclose the name of his principal or partner, by a sign in letters easy to be read, placed conspicuously at the house where such business is transacted, or if any person shall transact business in his own name, without any such addition, all the property, stock, money, and choses in action, used or acquired in such business, shall, as to the creditors of any such person, be liable for his debts, and be, in all respects, treated in favor of his creditors, as his property.”</p> <p>There is no proof that E. S. Harris was conducting the business as his own. Section 1300 of the code does not require a sign in any business. The substance of it is merely- that under certain conditions the ostensible owner is to be treated as the real owner. Bufldn v. Lyon, ante, 255.</p> <p>There is no proof that the defendant was the ostensible owner, or that his acts were anything more than those of a clerk. Adams v. Berg, 67 Miss. 234.</p> <p>Section 1300 of the code could not apply, and the instruction of the court based upon it is erroneous. There is no law compelling a merchant to have a business sign; nor is it the law that if he has no sign his goods are liable for the debts of his clerks.</p> <p>Section 1300 was intended to prevent fraud. It prohibits the use of certain kinds of signs in certain states of case, but does not require a sign in any case. Here the sign indicated nothing as to who was proprietor, and no one could be misled by it.</p> <p>Filed a brief discussing the facts at length and contending that the case of Adams v. Berg, 67 Miss. 234, is not in point, and does not support appellant’s position.</p> <p>The instruction given for plaintiffs is supported by the evidence, and is in harmony with the ruling of this court .in Evans v. Henley, 66 Miss. 148, and cases there cited.</p> <p>The jury found as a fact that the judgment debtor transacted the mercantile business of his wife, and that there was no sign at the place of business showing that he was her agent. On these facts, the property used in the business was liable for his debts under § 1300 of the code.</p>

FroM the circuit court of the first district of Hinds county. The HoN. J. B. ChrismaN, Judge, being disqualified to sit in this case by reason of relationship to plaintiffs, C. M. William-SON, Esq., a member of the bar, presided by agreement of parties. In 1848 Perry Cohea died, leaving a considerable estate, consisting in large part of lands in and adjoining the city of Jackson, Miss. He left a will, which was duly probated, and by which he devised all of his estate.

FroM the circuit court of Washington county. HoN. George WINSTON, Judge. Ejectment by appellees against appellants. The facts essential to an understanding of the only point passed upon by the court are stated in the opinion. The verdict and judgment were in favor of plaintiffs. Motion for a new trial was overruled, and defendants appealed.

From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. By an act of tbe legislature approved February 22, 1890, entitled “ an act to provide for tbe adoption of a uniform series of textbooks by tbe counties of tbis state for use in public schools,” provision was made for the appointment of a committee in each county, to consist of five teachers of l’ecognized ability, to select a uniform series of text-books.

<p>Exe.cutiox Sale. Setting aside. Return term. Power of court.</p> <p>The power of the circuit court to set aside, for fraud or other cause, a sale under execution is confined to the return term thereof. After that relief can only be had in equity. Hopson v. Swan, 50 Miss. 545.</p>

FrOM the chancery court of Madison county. Hon. H. 0. Conn, Chancellor.

From the circuit court of Washington county. IloN. E. W. WilliamsoN, Judge. The appellant, a licensed retailer in the town of Hollandale, was convicted upon an indictment charging him with keeping open his bar on Sunday in violation of § 2953, code 1880,' and was fined f 25.

Feom tbe circuit court of Yazoo county. HoN. J. B. CheismaN, Judge. The husband of appellee purchased a mare upon credit under an agreement with the seller that if payment was not made in the fall, title should not pass.

<p>1.Eminent Domain. Condemnation for levees. Measure of compensation.</p> <p>In the absence of a statute so providing, the owner of lands near the Mississippi river is not entitled to damages because of a failure by the levee board to so place levees as to protect the same from overflow, or because the levee prevents the river water from flowing off as it otherwise would, or because it deepens the water on his land between the river and the levee during an overflow, and thus renders it worthless for agriculture. These are unavoidable consequences of the situation, and of the authorized effort to promote the general good by the confinement of the waters of the river. Commissioners v. Harlcleroads, 62 Miss. 807.</p> <p>2. Same. Removal of houses to the protected side.</p> <p>For the same reason the land-owner cannot recover for expenses incurred in removing houses from the exposed to the protected side of the levee, made necessary by expected future overflows.</p> <p>3. Constitutional Law. Act of 1884. Eminent domain. Due compensation.</p> <p>Under the act of March 13, 1884 (Laws, p. 163), conferring the right of eminent domain upon the board of levee commissioners for Bolivar, Washington, and Issaquena counties, one whose land is taken by it for levee purposes is entitled to be paid “ the cash value of the land or material occupied or used for the right of way of said levee or for other purposes, and also the damages caused to the owner’s adjacent property by reason of the use of his land or other property for right of way for said levee, or for other levee purposes.” This meets the constitutional guaranty of due compensation for private property taken for public use, and is the measure of damages allowed to such owner.</p> <p>4. Same. Measure of damages. Test; when improper.</p> <p>The difference in the value of the entire tract of land before and after taking a part thereof for levee purposes, is an improper test in determining the damages caused to the owner from the construction of the levee.</p> <p>5. Same. Injury to land left unprotected. Evidence. Relevancy.</p> <p>Evidence of the successful cultivation of other tracts of land lying between the levee and the river was in this case rightfully excluded, if for no other reason, because of irrelevancy, since it was claimed by the owner, and shown by the evidence, that the tract here thrown out was rendered valueless for agricultural purposes.</p> <p>6. Condemnation eor Levee Purposes. Damages under act of 1884. What allowed.</p> <p>While the statute does not allow damages which result from the accomplishment of the purpose of the levee, namely, the confinement of the water of tlie river, it does allow, in addition to the cash value'Of the land and property occupied or used, all other damages to the owner’s adjacent lands on either side of the levee, directly caused by the taking of part of his land and from the construction of the levee.</p> <p>V. Same. Damage to adjacent lands. Drainage.</p> <p>The expense of drainage for the land on either side of the new levee, made necessary to protect it from overflow or sipage of rain water, should be allowed, but not the expense of draining the overflow and sipage water coming from the river.</p> <p>8. Same. Evidence. Value of lands when unprotected. Act 1884.</p> <p>Under said statute of 1884, evidence of the diminished value of the owner’s lands adjacent to the river, when wholly unprotected by any public levee, as compared with their value when protected, is competent, as enabling the jury to better determine what damage was done to such lands by the building of the new levee.</p>

EroM the chancery court of the first district of Hinds county. HoN. H. C. CONN, Chancellor. The facts are stated in the opinion. 1. Statutes conferring the power of eminent domain must be strictly construed. Cooley on Con. Lim. 648 ; 10 Ohio, 288. Such grants can be founded only on public good as distinguished from private advantage to the grantee. True, private advantage may be associated with public good, but the latter must sustain the right.

FeoM the chancery court of 'Warren county. How. Claude PiNTAKD, Chancellor. The act of March 16, 1886 (Laws, p. 93), authorizes the construction of telegraph lines through public lands of this state, and on, across and along all highways, streets and roads.

From the circuit court of Warren county. Hon. J. D. Gilland, Judge. Appellant brought this action against the city of Vicksburg to recover the value of a horse which was struck and killed by a hose-reel, which was being rapidly driven to a fire in the corporate limits. It is admitted that the death of the horse was the direct result of negligence on the part of the driver of the hose-reel and that there was no negligence on the part of plaintiff.

From tbe circuit court of ’Warren county. HoN. J. D. GillaND, Judge, did not preside in tbis case. WarreN CowaN, Esq., a member of tbe bar, presided by agreement. On tbe 22d day of January, 1S90, Nancy Summers, a colored woman, was injured on defendant’s railroad track, in tbe city of Vicksburg, from tbe effects of which she died. Tbis suit was brought against tbe railroad company by her husband, James Summers, for damages on account of the killing.

FROM the circuit court of Warren, county. HoN. J. D. Gilí,AND, Judge. On the trial of this case it was shown that after the sale of the stock of goods by the Vicksburg Liquor & Tobacco Co. to Miss Burns, it was replenished in her name, and privilege license was also taken out in her name, but there was no sign posted at the place of business until about the time of the levy. There was testimony tending to show that the goods were sold by the sheriff at a sacrifice.

From the chancery court of Warren county. HoN. Claude Plntard, Chancellor. On November 5, 1888, the appellant, Thomas M. Smedes, of Vicksburg, Miss., executed to B. F. Watkins his promissory note for $500, payable to said Watkins at a bank in Vicksburg, Miss., ninety days after date.

From the circuit court of Washington county. Hon. K. W. Williamson, Judge. One Showers went into possession of certain land under a written contract signed by the owners, Helm and Wilczinski. The contract was dated November, 1887, and recited that Helm and Wilczinski had made a verbal sale of the land to Showers at a certain price to be paid in four annual installments, beginning January 1,1888.

From the chancery court of Madison county. IioN. H. C. CONN, Chancellor. Appellants filed their bill against appellee to establish a resulting trust in certain lands.

FiioM the circuit court of Tunica county. Hon. E. W. WilliamsoN, Judge. The act of February 28, 1882, prohibits the practice of medicine without a license.

Froh the circuit court of Kemper county. HoN. S. H. Terral, Judge. Appellant was convicted of the murder of one M. H. Maury, and sentenced to imprisonment for life. The facts of tbe case briefly stated are these:— One Nicbolson, a white man, accompanied by his little son seven years old, was driving an ox team along a public road. He had occasion to stop, and the oxen were driven on by his son.

From the circuit court of Holmes county. HoN. C. H. Campbell, Judge. On the 14th of November, 1889, Barney Xleinfelcler was killed in Holmes county, Mississippi. On the 4th day of December following, the appellant, Eugene Story, and one M. Jones, Jr., were indicted in the court below for his murder. The defendants had been imprisoned on said charge since November 16th.

<p>Petition for Liquor License. Code 1880, § 1103. Withdrawal of name from counter-petition.</p> <p>Under § 1103, code 1880, which. provides for petitions and counter-petitions for license to sell intoxicating liquors, and directs that any name found on Loth petitions shall be counted against granting the license, one, who has signed the petition and also the counter-petition, may, by his written request to the proper authorities, ujithdraw his name from the counter-petition at any time before final action by them, and thus leave his name to be counted for the granting of license.</p>

From the circuit court of Sunflower county. HON. B. W. WilliamsoN, Judge. ^Replevin by John Cook against Susan P. Brady for 16 bales of cotton and 350 sacks of cotton seed. Defendant gave bond for the forthcoming of the property. Verdict and judgment for plaintiff. The jury did not assess the value of the several bales of cotton separately, but valued the 16 bales at an aggegrate sum.

FROM the chancery court of Madison county. Hon. H. C. Conn, Chancellor. Appellant, defendant in the court below, demurred to the bill of appellee, assigning several grounds of demurrer.

FboM tbe circuit court of Tallahatchie county. Hon. E. W. Williamson, Judge.

From the circuit court of Tallahatchie county. HoN. B. W. WilliamsoN, Judge. On the 23d of November, 1890, appellees, Chaffe, Powell & West, sued out an attachment in the court below against W. G. Peebles & Co. . On the 24th of November, the writ of attachment ivas levied on certain property, including cotton ungathered in the field.

Prom the circuit court of Carroll county. HoN. C. H. Campbell, Judge. On December 29th, 1889, appellee, a negro laborer, in company with several others ,went to Malmaison, a'flag-station on defendant’s railroad, where there were no passenger accommodations, but where trains usually stopped.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge.

From the chancery court of Warren county. HoN. Claude Pixtard, Chancellor. Section 4 of the act amendatory of the railroad supervision laws of this state, approved February 22, 1890 (Laws 1890, p. 106), is as follows :— “Every railroad company shall establish and maintain such depots as shall be reasonably necessary for the public convenience, and shall stop such of the passenger and freight trains at any depot as the business and public convenience shall require.

<p>From the circuit court of the first district of Carroll county.</p> <p>Hon. C. H. Campbell, Judge.</p> <p>Appellant, Hughston, is the tax assessor of Carroll county. He brought this action against the county in the court below to recover $315.15, alleged to be due him as additional compensation for assessing polls in said county for the years 1888 and 1889, in accordance with, the act of February 14, 1890. The defendant pleaded that in 1888 the plaintiff had been allowed and paid the sum of $203.80 in full for making individual assessments in said county for that year, which included the assessments of polls, and that in 1889 he had been allowed and paid $231.65 in full for personal assessments, including the assessment of polls in said county for that year. Plaintiff replied admitting the payments, but averring that they were made to him exclusively for the assessment of individuals for the years 1888 and 1889, and not for assessing polls. On the trial it was admitted that the plaintiff had performed the services sued for; and it was shown that the payments made to plaintiff were on account of individual assessments as alleged in the replication. Trial was had before the court without a jury, and a judgment was rendered in favor of the defendant, from which plaintiff appeals.</p> <p>Section 463, code 1880, provided “that the board of supervisors of any county may allow the assessor not exceeding five cents for each individual assessed, payable out of the county treasury.” By the act of February 16, 1884, this section was amended by striking out the language above quoted, and enacting in lieu thereof the following: “ The board of supervisors in each county shall allow the assessor five cents for each individual assessed, payable out of the county treasury.” Laws 1884, p. 17. The act of February 14, 1890, provides as follows :—</p> <p>“ Section 1. The boards of supervisors of the counties in this state shall make an allowance to the assessor in their counties amounting to five cents for each poll assessed in 1888, and the same in and for 1889, where the assessors have not received any allowance heretofore by the boards of supervisors or auditor.”</p> <p>“ Sec. 2. Hereafter the assessors of the various counties in this state shall have and receive, in addition to the compensation now allowed by law, five cents for each poll assessed in each year, to be paid out of the county treasury on an allowance by the board of supervisors.” Laws 1890, p. 35.</p> <p>In Sill v. Warren County, decided by this court at the last term, the act of 1890 was held constitutional.</p> <p>We submit the following considerations in support of the proposition that the purpose of the legislature was to give compensation for the services sued for in addition to allowances previously authoi'ized:—</p> <p>1. The statute, as its title indicates, was for the “ relief of assessors,” and the implication is that existing laws did not afford that relief.</p> <p>2. The labor of assessors had been greatly increased by the legislature of 1888. The non-payment of a poll-tax was made a misdemeanor, and the legislature intended to offer an inducement for diligence in rendering polls.</p> <p>3. There had not been uniformity in the action of boards of supervisors in the different counties. The former allowance had proven inadequate. Several counties had procured special legislation by way of increasing the salary.</p> <p>4. The general law at the time of the enactment of the statute, required the allowance of five cents “ for each individual assessed.” Laws 1884, p. 17.</p> <p>5. The second section providing the same compensation for 1890 and succeeding years should be considered also. The whole acts should be construed together.</p> <p>Manifestly the words “ where the assessor has not received any allowance heretofore,” mean that the allowance shall not be made in any county where in pursuance of special legislation the officer has received additional compensation, as in Adams, Hinds, and perhaps other counties.</p> <p>The appellant has received nothing which will preclude him from claiming the pay prescribed in the first section of the act. The fees provided in the act of 1890 for each poll assessed are in addition to compensation allowed by former laws. The object was to increase the salary. A. basis was adopted which would effect uniformity in the several counties, and stimulate the officers in the discharge of their duty. The court will avoid any construction which involves the assumption that the legislature made a mistake. 61 Miss. 220.</p> <p>The act in all its parts is consistent with former enactments and worthy of its title.</p> <p>The record shows that the appellant was paid five cents for each individual assessment for the years 1888 and 1889. This included the assessment of polls. Therefore he had received compensation, and was not entitled to an allowance for those years under the act of 1890. To hold otherwise would be to nullify the last two lines of the first section. Clearly this act did not mean that in such case the assessor should be allowed double pay. It is a well-settled rule in the interpretation of statutes, that every portion of the statute must be given effect if possible.</p> <p>The court will not assume that the legislature enacted this statute upon the idea that assessors in other counties had been allowed extra pay for the assessment of polls. THat body would not presume that tbe auditor and the various boards of supervisors had violated the law as to this. There was no authority to. make allowances other than for individuals assessed as was done in this case.</p> <p>Under the code of 1880 it was discretionary with the board of supervisors to make an allowance for the assessment of individuals. Under the act of 1884 such allowance was made mandatory. The first section of the act of 1890 only re-adopts the act of 1884. It is simply declaratory of the pre-existing law.</p> <p>In Hill v. Warren County, decided by this court at the last term, it was questioned whether the act of 1890 would give assessors additional compensation for past services. See 8 So. Hep; 257. We submit that the statute does not have this effect.</p>

Fp.om the chancery court of Tunica county. HoN. W. R. Trigg, Chancellor. On the 4th day of December, 1888, N. M. Alsup leased from R. M. & H. Banks certain agricultural lands in Tunica county, Mississippi, for the term of’five years, at and for the sum of $4290 to be paid for the year 1889, and for the remaining four years he was to pay $4417.50 annually.

From tbe circuit court of He Soto county. HoN. James T. Faítt, Judge. On August 7, 1889, tbe appellant, Lee, by contract in writing, leased to Hawks certain land for tbe term of three years. Under tbe contract Hawks was to cut and use tbe growing timber on a part of the land, and was to have the privilege of cultivating the land so cleared during bis term.

FrOM the chancery court of Lee county. W. T. HoustoN, Esq., a member of the bar, by agreement of parties, presided as special Chancellor in this case. Held: that while an oral agreement to rescind a written contract for the sale of land could not be enforced, it might present a good ground for refusal by the chancery court to specifically enforce the original contract. 2.

FROM the chancery court of Grenada county. HoN. B. T. Kimbrough, Chancellor. In addition to the facts set forth in the opinion of the court, it is perhaps necessaiy to state that the decree of September 15, 1883, therein alluded to, provided that $400 of the amount due to the estate of John P. Flippin should be paid over to the administrator de bonis non for the benefit of creditors of said estate.

FrOM the chancery court of Clarke county. HoN. Sylvan us EvANS, Chancellor. Appellant, W. E. McDonald, filed in the court below his final account as administrator of the estate of W. C. McDonald, deceased. The appellees, as heirs and distributees, excepted to the same, and the case was set down for hearing.

From the chancery court of Lee county. HoN. Baxter McEarlaNu, Chancellor. Appellants filed this bill in the chancery court of Lee county, seeking to revive an original suit begun in their behalf by their next friend in 1870.

From: the circuit court of Lee county. HoN. Lock E. HoustoN, Judge. The appellants brought this action of ejectment in January, 1890, against appellee to recover a certain lot in the town of Tupelo. Plaintiffs claim as children and sole heirs of William K,. Coleman, Avho died in 1869 seized and possessed of the lot.

From the circuit court of Lauderdale county. HoN. S. H. Terral, Judge. The appellant, Sallie A. Hewlett, a minor, brought this action by her next friend, in 1887, against her mother, Sarah A. Eagsdale, to recover $10,000 for having wilfully, illegally, and maliciously caused her to be imprisoned for ten days in the East Mississippi insane asylum.

From the circuit court of Tunica county. HoN. R. W. WilliamsoN, Judge. Appellant was plaintiff in a suit in tbe justice court, and, desiring to appeal from an adverse judgment, tendered to the justice of the peace, within five days, an appeal bond signed by himself and two sureties. The justice took the bond, saying he would examine it and if found correct would approve it. He declined to approve it, and entered a minute on his docket that he refused it because insufficient.

Fbom the chancery court of Yazoo county. HoN. H. C. CONN, Chancellor. The land in controversy, lot 131 in Yazoo city, was part of the estate of L. L. Hyatt, who died in 1865. By his will he appointed his wife, the appellee, guardian of their four minor children, and devised the said lot to his wife and children, to be equally divided between them “share and share alike.” In October, 1889, the children, being then of age, conveyed their undivided interests to appellee.

<p>Fbom the circuit court of Lafayette comity.</p> <p>HoN. JaMes T. FaNt, Judge.</p> <p>The opinion states the facts.</p> <p>The bond was liable for the forfeitures prescribed by § 369 of the code. It is competent for a statute to make the sureties liable for penalties. Cox v. Poss, 56 Miss. 481; Dailey v. State, 56 lb. 475; Beall v. Shattuck, 53 lb. 358. State v. Baker is not an authority against appellant. That was a case of malfeasance. This one of non-feasance.</p> <p>At common law the whole penalty was recoverable for any breach. 2 Black. Com. 341; Clark v. Barnard, 108 U. S; 436. Equity, however, began to relieve against this rigor by allowing only the actual damage to be recovered. Sureties cannot complain if the recovery be fixed at $200 instead of the whole penalty. Lewis v. State, 65 Miss. 468.</p> <p>The purpose of § 369 was to guard against just such embezzle-ments as this. In view of the great public interests involved in making such reports, the legislature might well have left the full penalty of the bond to be collected for such failures to report. However, the sum of $200 was fixed as agreed statutory damages. For such damages the sureties are liable.</p> <p>Sureties are never liable for fines imposed on the officer as an individual; but the $200 fixed by § 3'69 as liquidated damages is not in any sense a fine. It must be recovered by suit. The bond was given to insure performance of official duties, and among them the duty to report monthly was plainly included.</p> <p>The measure of the liability of the sureties is the judgment against the principal. 10 La. An. 261; lb. 284. The twelve per cent, penalty for failure to pay over school fund is recoverable from sureties of a treasurer. Tappan v. People, 67 Ill. 339. See also 72 lb. 11. The liability of a guarantor is the same as that of the principal. 14 Ind. 224; 9 "Wheat. 680; Burge on Suretyship, 54.</p> <p>The special bond required by § 727 does not relate to the performance of the duties enumerated under § 369. They are covered by the general bond here sued on. So, whether the loss resulting from failure to so report accrued to one fund or the other the breach being covered by the general bond, the sureties are liable. Under the allegations of the declaration admitted by the demurrer, the loss was the direct result of the failure to make the reports.</p> <p>The liability of sureties is strietissimi juris. 60 N. Y. 421 ; Brandt on Suretyship, §§ 102,451; 61 Md. 449; 21 How. 67. The liability for penalties is personal to the officer. The sureties on the bond are not liable for them. BrooJcs v. Governor, 17 Ala. 806; Treasurer v. Hilliard, 8 Itich. (S. C.) 412. Penal statutes cannot embrace cases not plainly within the meaning and letter. Johnson v. State, 63 Miss. 228 ; Com. v. Swope, 45 Pa. St. 435 ; Brown v. Phipps, 6 S. & M. 51; Furlong v. State, 58 Miss. 728. Sureties are not liable for statutory penalties. Murfree on Off. Bonds, § 654.</p> <p>Some injury must be shown to have resulted from the illegal act before the sureties can be held. Lewis v. State, 65 Miss. 472. The case in 108 U. S., cited by appellant, was decided upon the intention of the parties to a contract. Sureties are not liable for the penalty against a sheriff for failing to return an execution, but they are liable for any damages sustained.</p> <p>The second count fails to show that the treasurer was in default for any of the county funds. If the plaintiff does not know whether a deficiency exists in the county funds, who does know? The allegations of this count are too indefinite. Even in equity an allegation that accounts are intricate will not prevent a demurrer. Adams’ Eq. § 226.</p> <p>The case is purely statutory. The statute being penal cannot be extended to cases not plainly embraced. Johnson v. State, 63 Miss. 228. Section 369 of the code does not provide that the sureties shall be liable, but fixes a penalty on the treasurer alone. Section 375, on the contrary, provides when and in what cases the sureties are liable.</p> <p>The second count does not pretend that there is any known deficit of county funds. If there was an intermingling of funds, it was the duty of the board of supervisors to disentangle them-. Perry on Trusts, § 838. These sureties can be made liable only by showing a loss of county funds.</p>

From the circuit court of Adams county. HoN. W. P. Cassedy, Judge. Appellant, Diebel, has been convicted upon an indictment charging him under § 2848, code 1880, as the lessee and occupant of a certain building, with knowingly permitting gaming therein.

From the circuit court of Franklin county. HoN. W. P. Cassedy, Judge. Held: and the result certified by the election commissioners. Toole v. State, 7 S. & M. 42; Norton v. State, 65 Miss. 297.

FROM tbe circuit court of Adams county. How. W. P. Cassbdy, Judge. This action was brought May 4, 1891, by Wirt Adams, state revenue agent, to recover of the appellee, Taylor, the amount of unpaid privilege taxes for 1889 and 1890, which it is alleged he ought to have paid as a retailer of intoxicating liquors.

<p>1. Marriage Between Slaves. Act 1865. Constitution of 1869.</p> <p>Neither see. 3, act of November 25,1865 (Laws, p. 82), nor see. 22, art. 12, constitution of 1869, which legalized slave-marriages and legitimated the issue thereof, applied unless, at the time the act was approved, or the constitution adopted, the parties were living together and cohabiting as husband and wife.</p> <p>2. Same. Coda 1871, § 1766 ; not applicable.</p> <p>Section 1766, code 1871, which validates all marriages “heretofore solemnized in this state not prohibited by art. 3, chap. 23” of said code, related only to former marriages within prohibited degrees. It had no application to unlawful marriages between slaves.</p>

From the chancery court of ’Washington county. HoN. W. E. Trigg, Chancellor. The appellee, Schmidt, filed this bill to confirm a tax-title to the lands in controversy.

Feom the chancery court of Sunflower county. HoN. W.'E. Teigg, Chancellor. The appellee, the Valley Land Co., Limited, filed the bill in this cause, alleging that it was the true owner of the land in controversy, and praying for a cancellation of the claim asserted thereto by the appellant. A demurrer was interposed by the defendant, which was overruled, and an appeal taken to the supreme court, which affirmed the decree.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. The opinion, states the case. 1. The great weight of authority is in favor of the proposition that mental suffering or disappointment unaccompanied by physical injury will not support an action for damages in a case of negligence only. Canning v. Wittiamstown, 1 Cush. (Mass.) 451; Lynch v. Knight, 9 H. L. 577 ; Johnsons.

<p>1. Sueface-Water. Collection of. Overflow. Damages.</p> <p>One is liable in damages wlio collects in artificial channels surface-water, falling upon liis own land or that of others, and discharges it in undue and unnatural quantities upon the land of another.</p> <p>2. Railroads. Diverting water-course or surface-water. Overflow.</p> <p>Where the road-bed of a railroad diverts water, either in streams having channels and banks or mere surface-water, and causes it in undue quantities to overflow the land of another, the company is liable in damages therefor.</p> <p>3. Damages. Measure of. Injury to land. Crops.</p> <p>In an action for overflowing plaintiff’s land, where the evidence shows damage, not to crops directly, but that the land is rendered incapable of producing full crops, plaintiff cannot recover the value of the land, and, in addition, damages on account of the failure to make such crops.</p>

From the circuit court of Lee county. Hon. Lock E. Houston, Judge. Action for damages against the railroad company for ejecting appellee from a train. On the trial of the case, at the instance of plaintiff, the court gave the following instructions:— “ 1.

From tbe circuit court of Amite county. By agreement of parties, D. C. BraMKETt, Esq., a member of the bar, presided as special judge on the trial of this case. The opinion states the case. In the court below plaintiffs in attachment recovered judgment, from which this appeal is prosecuted by the claimants.

From the chancery court of Clay county. HoN. Baxter McFarlaND, Chancellor. Appellee, Lida Y. Brewer, was the owner of a tract of land in Clay county, Mississippi. In March, 1887, she sold and conveyed it to A. A. Murphy, who paid a part of the consideration and gave her notes for the balance, due at different dates thereafter. By some arrangement, unknown to her, ihe notes were made payable jointly to herself and husband, A. C. Brewer.

Feom the chancery court of Yazoo county. Hon. H. C. CONN, Chancellor. Appellees, as complainants, obtained a decree in the court below, from which the defendants prosecuted this appeal. A part of the land in controversy was sold to the state in 1878 for the non-payment of the taxes of 1877, and defendants after-wards purchased the same, receiving a deed from the auditor. At the time of the sale of this land to the state, it was assessed to the liquidating levee board.

From: the chancery court of Jackson county. HoN. S. EvaNS, Chancellor. On November 23, 1880, John I. Adams & Co. recovered judgment against G. M. Dees and M. A. Dees for $119.71, and on May 23, 1881, judgment in favor of the same plaintiffs against the same defendants was rendered for $230.

From the chancery court of Nexnbee county. Hon. T. B. Graham, Chancellor. In 1869 the heirs-at-law of William Robinson, Sr., one of whom was non compos mentis, and represented by his guardian, James P. Robinson, made an agreement for the partition of the real estate of their ancestor, which consisted of lands in the states of Alabama and Mississippi.

From the circuit court of Wilkinson county. HoN. W. P. Cassedy, Judge. Appellant, Stricker, was a warehouseman engaged in receiving, storing and forwarding freight on the Mississippi river. His place of business was known as Strieker’s Landing, and it was near the public landing at Fort Adams.

From the circuit court of Claiborne county. HoN. J. D. GillaND, Judge. This was a proceeding by the Postal Telegraph-Cable Co., a corporation of the state of New York, seeking under the act of 1886 (Laws, 93), to condemn for a right of way for its telegraph line a part of the right of way of the Louisville, New Orleans & Texas Railway Co., from Vicksburg, Mississippi, to the Louisiana line, a distance of one hundred and eight miles.

From tbe circuit court of Lee county. HoN. Lock E. Houston, Judge. This is one of several actions of ejectment brought by appellants to recover lands sold by their guardian under what they contend was an invalid order of the probate court made in 1870. In the case of Morton v. Carroll, decided at this term (ante, p. 699), the proceedings of the probate court resulting in the sale were held to be regular and the validity of the sale affirmed.