Volume 69 — Mississippi Reports

From tbe chancery court of Madison county. Hon. H. C. Conn, Chancellor. The opinion states the facts. 1. The proceeds of the insurance belonged to the firm. The partner had no right to the money because he held the legal title of the building.. Insurance is a personal contract, and the money is not the proceeds of the property. The non-insured, whether mortgagee, creditor, owner, or other person, has no claim to it, either legal or equitable.

Prom the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor. The facts are sufficiently stated in the opinion. (The allegation mainly relied, upon by complainants is that the assignment was made by one partner without consent of the other. This allegation is denied, and is not proved by a single witness.

From the.cireuit court of Washington county. Hon. B. W. Williamson, Judge. Held: in regard to highways, that any other use of them than for the purpose of passing and re-passing makes a person so using them a trespasser. Elliott on Loads & Streets, § 309.

Prom the chancery court of Madison county. Hon. H. C. Conn, Chancellor. The facts are stated in the opinion. Since if is claimed that the nuisance is permanent, the damages are capable of definite ascertainment, and the remedy at law is complete. 2 Black on Judgments, 743, 744. The bill does not show that complainant suffers any injury different in kind from that sustained by the public. The difference is only in degree. Green v. Lake, 54 Miss., 540; 19 N. J. Eq., 278; 6 Am.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. J. C. Julienne brought this action before a justice of the peace to recover of the city of Jackson for killing a dog, which was shot, as he contends, unlawfully‘by the chief of police of said city. The charter of the city conferred the power to provide for the confinement and destruction of dogs when deemed necessary.

From the chancery court of Washington couuty. Hon. W. A. Trigg, Chancellor. The appellant, D.tvis, was the son of -Nellie Kanatzer by her first marriage. On the seventh clay of October, 1882, he being then a minor about sixteen years of age, his mother 'conveyed to him a plantation in Washington county known as Wildwood, owned by her but upon which she owed a considerable sum of money secured by a vendor’s lien.

<p>1. Deed. Designation of grantor. Administrator.</p> <p>A deed shown to have been made by an administrator de tonis non with the will annexed is valid, though after the signature of the grantor only the word “ administrator ” appears, there being no other designation of. his official character.</p> <p>2.' Bes Judicata. Decree in partition. Pffect ira another suit.</p> <p>Where land is devised to several, the administrator with the will annexed being one of the tenants in common, a decree in partition proceedings between them, directing a sale for division by a disinterested person rather than the administrator, is not res judicata in another proceeding against his right to execute a power under the will to sell part of the land to a third person.</p> <p>3. Administrator with Wild Annexed. Power of sale. Gode 1880, § 1984.</p> <p>A purely personal trust reposed in executors nominatim cannot be executed by an administrator with the will annexed, but if the will directs the sale of property devised at all events and the power to sell is confided in the executors virtute officii, it may be exercised by an administrator with the will annexed. Hutch. Code, 761, § 113; Code 1880, $ 1984.</p> <p>4. Same. Power executed virtute officii.</p> <p>The fact that authority is granted to three executors, or any two of them, to execute the will, will not prevent its execution by an administrator with the will annexed if the executors named were empowered to act by virtue of their office merely.</p>

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. Judgment for plaintiffs on a bill of exchange. Defendant appeals. The opinion states the case. 1. Plaintiffs’ replication alleged a different contract from that set forth in the declaration, and is a departure from it. The declaration claimed title to the bill of exchange by purchase from the payee, and not as evidence of a debt due them originally from appellant.

From the circuit coui’t of Holmes county. Hon. C. H. Campbell, Judge. Powers, Eawlins & Co., held a judgment against appellees, John A. Sample and his wife, M. S. Sample. Execution thereon was issued and levied upon eighty acres of land owned by M. S. Sample, and' it was sold and bought in by the appellant, J. D. Powers. The husband, John A. Sample, owned eighty acres of land adjoining, and the house in which he and his family resided was situated thereon.

From the circuit court of Rankin county. Hon. A. Q-. Mayers, Judge. Cocke & Ward were merchants occupying a store-house belonging to Richardson & May,- and, while in arrears for the rent, made an assignment of their stock of goods for the benefit of creditors. Appellee, McLaurin, purchased the stock from the assignee, paying therefor, as is admitted, a reasonable price, and taking possession.

<p>From the circuit court of Yazoo county.</p> <p>Hon. J. B. Chrisman, Judge.</p> <p>For several years prior to 1890 B. G. Hudson had rented to J. A. Hill a plantation, and each year made advances of supplies, and at the beginning of each year Hill was accustomed to secure any past-due debt and the rent and supplies for the ensuing year by a trust-deed on all the crops to be grown on the plantation, and all the interest or shares he might have in such crops. At the close of the year 1889 he executed three notes for $1,250 each, due in December, 1890, and January, 1891. A trust-deed was executed of the character above stated, which expressly provided that the notes should be discounted and the proceeds, after paying the past-due indebtedness, placed to the credit of Hill, and that advances should be made by Hudson to him of supplies, and, if these advances should exceed the said balance, the excess should be secured by the trust-deed. After discounting the notes and paying the past-due indebtedness, there was to the credit of Hill about $300. He, however, obtained from Hudson, during the year 1890, supplies to the amount of $1,700. It was further provided by the trust-deed that any payments made might be applied, at the option of Hudson, to any debt, whether secured or not. The cotton made by Hill in 1890 was delivered to Hudson and applied to the payment of the three notes for $1,250 each, and left unpaid the rent note of $900 and the larger part of the account for supplies for 1890. The three notes, together with the account for supplies, were assigned by Hudson to J. F. Powell.</p> <p>The seven bales of cotton in controversy were grown upon the land of appellant, Hollingsworth, which J. A. Hill had sub-rented to ’Squire Jefferson. Before the crop of Jefferson was gathered .he voluntarily abandoned it, owing Hill, his landlord, for rent and supplies, and the latter took possession of the land and assumed control of the crop, and agreed with appellees, Allan ’Hill and Adeline Wright, that if they would gather the crop and pay him J efferson’s debts, with an agreed deduction, they might have the crop. Under this contract Allan Hill and Adeline Wright gathered the crop and paid J. A. Hill the price agreed. Meantime, Hudson having failed in business, Powell was left to enforce against the crops grown on the plantation his lien under the trust-deed and as holder of the landlord’s claim for supplies. Hollingsworth was substituted trustee under the trust-deed, and sought to take possession of the cotton above mentioned, but, being prevented by J. A. Hill, he brought replevin against the latter therefor. Afterwards Powell, fearing that Allan Hill and Adeline "Wright, who gathered the crop, might assert a laborer’s lien thereon, had the cotton seized under a distress for rent based on the claim for supplies. J. A. Hill, tenant, replevied the cotton, and Allan Hill and Adeline Wright also interposed a claim.</p> <p>The record also contains an agreed statement of facts, as follows:</p> <p>“It is hereby agreed that Hr. J. A. Hill was the tenant of B. Gr. Hudson for the year 1890, and that the said Hudson furnished the said Hill supplies, in money and merchandise, during the year 1890, and that J. F. Powell is the holder and assignee of said indebtedness for a valuable consideration; that the debit items of said account are true and correct, and that the said Hudson has rented said plantation during the last seven years to said Hill, and that it has been the custom of said Hudson to bring forward any balance that may be due from any year, for which the said Hill has given his notes as well as for supplies to be furnished, and said notes charged up to said Hill in said account, and the same discounted and the proceeds passed to the credit of said Hill, and any payments he made in either money or cotton have been by the said Hudson applied to the payment of said notes and then to the items of the open account when there was a balance. But it is further understood and agreed that nothing herein shall be construed or understood in any way to prevent said claimants to assert their legal rights to say how such payments should be applied.”</p> <p>The two cases, the one begun by replevin and the other growing out of the distress, wrere consolidated. The trial resulted in a peremptory instruction for the claimants. Motion for new trial overruled, and Powell and his trustee appealed.</p> <p>The circuit court took the view that legal title to the cotton was in Jefferson and never passed to Hill by the former’s abandonment of the crop. If that is true, the claimants did not show title in themselves. If they got no title from Hill, they got none at all, for they did not purchase from Jefferson. Hill rightly took the cotton as his own after the abandonment, and the lien of the trust-deed attached to it, and the claimants bought the crop subject to the lien. Besides, Powell was the holder of the supply-account for 1890, and had the right to distrain. Laws 1890, p. 67.</p> <p>The lien for supplies attached to the products by whomsoever raised on the land. The cotton for 1890 was appropriated so as to leave the supply-debt unpaid. The trust-deed express^ gave the right to make this appropriation. Where debtor and creditor by agreement apply payments, the court will not disturb the application. Pitzer v. Logan, 7 S. E. Rep., 385; Newburger v. Perkins, 62 Miss., 584.</p> <p>The claimants had no right to say how the proceeds of the cotton should be applied. Hiller v. Levy, 66 lb., 30; Gioin v. McLean, 62 lb., 121; Jefferson v. Church, 43 N. W. Rep., 74.</p> <p>The lien of the landlord upon the agricultural products is good against a bona fide purchaser. Honea v. Page, 60 Miss., 248; Henry v. Laois, lb., 212; Cohn v. Smith, 64 lb., 816.</p> <p>Jefferson, the abandoning tenant, is not complaining, and the appropriation of payments as authorized by the trust-deed had been made long before the claimants had bought the cotton or acquired any interest in it. It is clear that they have no cause of complaint.</p> <p>The landlord had no right to appropriate the crops to the payment of a debt other than the rent and supply bill, either with or without an agreement with the tenant, to the detriment of the sub-tenant. Ogden v. Harrison, 56 Miss., 743, is decisive of the case, if the fact was that the tenant had given no instructions to appropriate the cotton to the old debt. If there had been such an agreement, it would avail Powell nothing, as two persons, by an agreement between themselves, cannot dispose of the property of a third person, a stranger to their agreement.</p>

From the chancery court of Bolivar county. IIon. W. R. Trigg, Chancellor.

From the circuit court of the first district of Iiinds county. J. B. Harris, Esq., a member of the bar, special judge by ' consent.

From the circuit court1 of Washington county. Hon. K,. W. Williamson, Judge. On March 9, 1882, was passed “An act to encourage the establishment of factories in this state and to exempt them from taxation.” The -act contains, among other things, the following sections: “ Section 1.

<p>From the circuit court of Yazoo county.</p> <p>Hon. J. B. Chrisman, Judge.</p> <p>This action was brought by Wirt Adams, state revenue agent, to recover of appellee, J. L. Thibodeaux, the amount of a privilege tax which it is alleged he was liable to pay for the year ending March 1, 1890. The declaration alleges that Thibodeaux sold and gave away intoxicating liquors at his place of business in violation o'f §1109 of the code, and thereby became liable to pay a privilege tax; that he evaded and escaped the payment o"f the privilege tax by concealing from the tax-collector his liability therefor and secretly car•rying on the illicit sale of liquors; that because of the failure and neglect of the tax-collector to collect the privilege tax, a right to sue therefor accrued to plaintiff. A demurrer was sustained to the declaration, and plaintiff declined to amend. Judgment final was rendered for defendant, and costs taxed against the state; and from this judgment the state appeals.</p> <p>The declaration alleges that the tax-collector failed and neglected to collect the tax. In, view of this, the right of the revenue ageht is clear. The tax-collector was without any .remedy to enforce collection of this privilege-tax, for by § 1109 of the code he was only authorized to “ assess and collect” the amount and prosecute the delinquent; and by the act of 1890 the extent of his liability is made his wilful failure to prosecute or “ endeavor to collect.” The inference seems just that the legislature intended that such “ endeavor ” was the extent of the sheriff’s right. By § 594 of the code he has the right of distress for taxes imposed upon property delinquent; but this court has twice held that section not to apply to delinquent liquor-dealers. State v. Biazza, 66 Miss’., 426; State v. Adler, 68 Miss., 487.</p> <p>The right in the sheriff' to collect cannot be implied, for distress for taxes at common law existed only in case of unpaid taxes; and a license fee is not a tax. 42 Ga., 596; 94 111., 364; 62 Pa. St., 491; 22 Minn., 312; 30 La. An., 637; Cooley on Tax., 408, 409; Cooley on Con. Lim., 495.</p> <p>We conclude, then, that the tax-collector had no remedies to exhaust before this action could be maintained. To hold that the revenue agent can only sue after the tax-collector has exhausted his remedies, will deprive him of the better part of his usefulness; for the license fee could never fail of collection by the tax-collector if sufficient liable property could be found; and if assets could not be found, suit by'the revenue agent would be useless. By the act of 1890 the revenue agent may sue in all cases where revenue has, for “ any reason,” escaped collection, and where collectors have failed to collect, and where, for any reason, there has been a failure to enforce the law. The state has no interest in the causes of the tax-collector’s failure. Whether he fails ignorantly or innocently or wilfully after notice, if, in fact, there is a failure to collect, the revenue agent is empowered and required to collect. The only difference between an innocent and wilful failure by the tax-collector is that, in the latter case, the state has two remedies — one against the delinquent for the state and the other against the officer on his bond.</p> <p>The declaration avers neglect on the part of the sheriff'. This implies dereliction of duty. In State v. Adler, the court held that the act of 1890 made the law for the future what the appellant contended it had been in the past. This suit was brought for liability in part incurred after that act.</p> <p>Since § 1109 fixes the amount of privilege-tax to be paid, no assessment is necessary. No duty rested upon the tax-collector to assess and collect in the absence of information that liability existed. Under the act of 1890 his bond became liable for the wilful refusal to collect. A wilful refusal is thus the criterion of liability on the officer’s bond, but not of the right of the revenue agent to sue. His power is-specifically defined in the act of 1890, and extends to all cases where there has been a failure to collect privileges. His right to make such collections under the act of 1890 is intimated in State v. Adler. In State v. Taylor, 68 Miss., 730, it was held that the revenue agent could not sue in conjunction with the sheriff, and that their functions could not be commingled. But there can be no conflict of duty in this case,, since the sheriff has already failed, and lost his remedy.</p> <p>Three remedies are now given for collecting such taxes r (1) The sheriff, by suit to collect; (2) by the revenue agent on default of the sheriff'; (3) by the revenue agent against the sheriff' and his bond in case of his failure or ueglect to-collect. As the declaration clearly alleges such failure and neglect on the part of the sheriff', the demurrer should have-been overruled.</p> <p>It was error to tax the- state with the costs, since the act of 1890 exempts the state from all liability for costs.</p> <p>This action is brought, under the act of 1890, to recover for an alleged violation of the revenue act committed prior to its passage. That act provides that the privilege-tax shall be collected, but shall not entitle the party to continue to sell or retail liquors. To exact a privilege-tax and at the same time deny the tax-payer the benefits of the license, is unconstitutional. .It is likewise unconstitutional to impose by statute penalties for acts previously committed. The act of 1890, if constitutional, does not authorize the collection of privilege-taxes by suit by the revenue agent or by any one else. The right to collect taxes by civil suit has been expressly denied by this court. State v. Piazza, 66 Miss., 426; State v. Johnson, MS. Op. ■</p> <p>The right, however, is here claimed under the act of 1890 relative to revenue agent. Chapter 2 of the general revenue act of 1890 was approved after the above act in reference to the revenue agent, and the later statute made it the duty of the sheriff to collect the penalty where the liquors are unlawfully sold. So by § 1109 of the code and also by this act of 1890, it is the primary duty of the tax-collector to proceed for the privilege tax. The revenue agent could not proceed until the sheriff had loilfully refused or neglected to. proceed against the retailer, and then his right of action would be against the bond of the tax-collector.</p> <p>Filed briefs in aid of appellee, contending that under the former decisions of this court involving the authority of the revenue agent to sue, he is without power to maintain this action; that a reasonable construction of the act of 1890 is that such authority was not intended to be conferred, and that, if it was, said act is unconstitutional as applied to cases like this.</p>

From the. circuit court of Warren county. Hon. J. D. Gtlland, Judge. This suit was instituted by Wirt Adams, state revenue agent, to recover from the Yicksburg Bank state, county and city taxes upon the capital stock of said bank for the years 1884 to 1889, inclusive.

From the chancery court of Warren county. Hon. Claude Pintard, Chancellor. The amended charter of the city of Vicksburg (Laws 1884, page 422) contains the following provisions in reference to the assessment of property for taxation : “ Section 30.

From the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge.

From the chancery court of the first district of Hinds county. Hon. H. C. Conn, Chancellor. Appellant, B. N. Miller, district attorney, in conjunction witli the attorney-general, instituted an action in the name of the state, in the circuit court of Hinds county, against the bond of W. L. Hemingway, former state treasurer. It was deemed necessary to transfer the litigation into the chancery court, and, pending the suit, a receiver was appointed by that court.

From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. Mandamus to compel G. T. Hamilton, superintendent of education of Holmes county, to issue pay-certificates to the treasurer of the town of Durant, in said county, claimed to be due by the county to said town for the pro rata cost of tuition of children living outside of the town, who had attended school within it.

From the circuit court of Warren county. Hon. J. H. Gilland, Judge. This action was instituted by George French, a minor twenty years old, by his next friend, against the Louisvillé, New Orleans & Texas Railway Co. to recover for personal injuries. The track of appellant’s railroad extends along the center of Levee street, in Vicksburg, for nearly half a mile. This street is a narrow one, and, where the accident to plaintiff’ occurred, is lined on both sides by houses.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. This action was brought by Henrietta Hirsch to recover of the Louisville, New Orleans & Texas Railway Company, damages for the death of one daughter aged seven, aiid injuries to another daughter aged fourteen, who were struck and run over by a backing train of the defendant. She seeks to recover for loss of services of the children, medical bill and funeral expenses.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. Action by appellant against appellee for personal injuries. Peremptory instruction for defendant. The evidence of the plaintiff, in the light of which the propriety of the peremptory instruction is determinable, is stated in the opinion.

From the circuit court of the first district of Hinds county. TIon. J. 13. Chrisman, Judge. The opinion states the facts. Farris was the servant of plaintiffs in charge.of the farm. There is no conflict of evidence as to his connection with the affair.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. Action by Jack Watly agaiust the Mobile1 & Ohio Railroad Company for the death of his infant son, run over by defendant’s train.

From tbe circuit court of Warren county. Hon. J. D. Gilland, Judge. The opinion states the facts.

From the, circuit court of Warren county. Hon. J. D. Oilland, Judge. Plaintiff Hanes, with others, took passage on defendant’s train at Vicksburg, and paid his fare to Four Mile Bridge, a flag-station a few miles distant. The train, which was a special excursion train, ran by the station, stopping a short distance beyond it — according to some of the evidence, nearly a mile — and plaintiff, with other passengers for the same place, alighted, and the train moved on.

From the circuit court of Warren county. Hon. J. D. G-illand, Judge. Action of slander brought by the appellee against the appellant, based upon an alleged libelous letter written by it3 superintendent. In May, 1890, the plaintiff was a passenger on the defendant’s road, and checked a trunk and valise from Meridian to Vicksburg.

From the circuit court of Warren county. Hon. J. D. G-illand, Judge. Action to recover for damages to three car-loads of oats shipped over defendant’s railroad from Vicksburg, Miss., on a through bill of lading, to Atlanta, Ga. The line of defendant’s road extends only to Meridian, Miss.', from which place the oats were carried over connecting lines, but in the same cars, and reached Atlanta with the original seals of the cars unbroken and their contents undisturbed.

From the circuit court of the first district of Hiuds county. Hon. J. B. Chrisman, Judge. The appellants, J. W. & J. F. Johnson, shipped a mixed car-load of cattle and hogs from Morton to Jackson, Miss. Both places are on the A. & V. Railway, the distance between them being thirty-five miles.

<p>From the circuit court of "Washington county.</p> <p>IIon. R. W. Williamson, Judge.</p> <p>Appellant brought this action against the Greenville Street Railway Co. to recover for personal injuries sustained by him while a passenger. The amended declaration, after setting out the contract for passage and notice to the driver of the car to stop at a certain point, alleges: “The defendants, through their said agent, wholly refused to stop said car at said crossing, as requested, and, on the contrary, continued to. drive said car over said crossing at such speed as to endanger the safety of plaintiff'had he attempted to alight at the time. Before reaching said crossing, plaintiff had repaired to the lower step on the hinder part of the car, and put himself in a position to alight, so certain was he that the car would stop for him; and, while standing in his position on such step, expecting the car to stop, he was, by the negligence and carelessness of said company’s driver, thrown from said car and injured,” etc.</p> <p>Defendant demurred, on the ground that the declaration showed contributory negligence on the part of plaintiff. Demurrer sustained, and plaintiff appeals.</p> <p>The amended declaration does not show contributory negligence in plaintiff. The question of bis negligence should have been left to the jury. 34 N. Y., 670; 67 lb., 366; 56 lb., 307; 115 Mass., 239; 118 lb., 228; 87 N. Y., 63; 50 Mo., 139; 92 Pa. St., 475.</p> <p>It was negligence per se for plaintiff to go upon the lower step of the platform while the car was moving at a dangerous rate of speed. While some authorities hold it is not negligence in itself to ride on the platform of the car, it is a different thing while the car is in inotion to go on the steps, which aré used only for ingress and egress. It affirmatively appears that plaintiff voluntarily assumed a position of danger.</p>

From the circuit court of Washington county. IIon. H. W. Williamson, Judge.

From: the circuit court of Warren county. Hon. J. D. G inland, Judge. David was general manager for appellee in this state, transacting the business in appellee’s name and with its knowledge. The powers of an agent extend to all necessary means of executing the business with effect. Story’s Agency, §§ 58-97; Wharton’s Agency, § 126.

From the chancery court of Washington county. Hon. R. W. Williamson, Judge. 1. Section 1108 applies only where the seller is a licensed retailer. The state consents to give license to retail, but, as one condition of the license, sales under it must be for cash. 2. Only two items in the whole indebtedness were for whisky.

<p>1.. Marine Insurance. Peril of the river.</p> <p>Damage to cotton wbicli is wet by being thrown from the deck into the river by the sudden careening of a steam-boat is covered by a policy insuring against perils of the river.</p> <p>2. Same. Negligence of crew. Liability of insurer.</p> <p>And the insurer is liable therefor, though the cotton may have fallen into the water as the result of carelessness or unskillfulness in unloading, and this although the insurance is for the benefit of the owner of the boat. To relieve from liability because of the acts of the master or crew, there must be a want of good faith.</p>

Prom the chancery court of the first district of Hinds county. Hon. H. C. Conn, Chancellor. John TV., Edward and Elizabeth Burns were tenants in common of certain real estate in'the city of Jackson. John TV. Burns had possession of the property for several years, and received and appropriated the rents. Thereafter he gave to Dreyfus & Ascher a trust-deed on the property, not specifying the extent of his interest, to secure the payment of a debt he owed them.

<p>1. Criminal Procedure. Appeal. Non-appearance of accused.</p> <p>Where one, convicted in a mayor’s court, appeals to the circuit court, hut fails to appear, the circuit court should dismiss the ajipeal and direct a procedendo to the mayor.</p> <p>2. Same. Appeal to supreme court. What errors assignable.</p> <p>If the accused appeals from such dismissal to this court, he cannot assign for error defects in the affidavit, or complain that the circuit court refused, in his absence, to inquire into his guilt on the merits.</p>

From the circuit court of DeSoto county. Hon. James T. Fant, Judge. The indictment and the evidence upon which the appellant was convicted are stated in the opinion. The raffling for the prize,is condemned by the statute, not the selling of a chance in a raffle. The case is clearly within the statute, and is not the case of a sale of lottery-tickets.

From the circuit court of Yazoo county.' Hon. J. B. Chrisman, Judge. Appellant, Beck, was the steward of a steam-boat plying the Yazoo river. On the boat was a bar, owned and operated by one Fullwood, at which liquors were sold; but, on the occasion in question, the boat was in Yazoo county, which, under the local option law, had voted against the sale of intoxicating liquors. A man came on the boat to procure a bottle of whisky, and asked the steward, Beck, for it.

From the circuit court of Warren county. Hon. J. H. G-illand, Judge. The Nogales Club, a corporation, was indicted _for selling vinous and spirituous liquors to a minor.

From the circuit court of Washington county. Hon. E. W. Williamson, Judge. Action by the state for use of the board of levee commissioners for the Yazoo aud Mississippi Delta, upon the bond of appellant, C. II. McLeod, tax-collector of Sunflower county, for $4,040.37, taxes collected for said usee and unlawfully withheld.

From the chancery court of the first district of Hinds county. Hon. H. C. Conn, Chancellor. Appellee, Hillman, claiming to be a creditor of Mrs. S. C. Banks, deceased, filed this petition, under code 1880, § 2047, against her administrator and heirs, seeking a sale of the lands of the estate to pay his debt.

<p>From the circuit court of Lauderdale county.</p> <p>IIon. S. H. Terral, Judge.</p> <p>Stevenson, the appellant, entered into a written contract with the Morris Machine Works, manufacturers of engines, boilers, etc., in the state of New York, whereby he was to find purchasers for its engines in consideration of a certain commission on the price realized. All. the expenses of making the sales were to he borne by plaintiff, and he was required, when sales were made on a credit, to take notes, payable to the Morris Machine Works, and written upon blanks furnished by it. Catalogues and price-lists were also furnished for the guidance of Stevenson, and he was to be paid his commissions whenever the engines sold were delivered and accepted by the purchasers and the purchase-money paid to appellee. Oñ the receipt of orders the engines were shipped to the purchasers, bill of lading attached, and to be delivered on the order of the shipper after payment of the cash and execution of the notes for the purchase-money.</p> <p>During the year 1890, Stevenson found certain persons willing to purchase appellee’-s engines, and took from them orders, which were- promptly forwarded to appellee, but shipments were, by appellee, delayed so long that the purchasers declined to receive the engines, and the sales were lost. Stevenson brought this action against the Morris Machine Works to recover the amount of commissions he would have realized but for the alleged fault of defendant, whereby the sales were defeated. The trial resulted in a peremptory instruction for defendant. Judgment accordingly, and plaintiff appeals.</p> <p>When appellant found the purchasers and forwarded the orders, which were accepted, he had done all that was required of him. If, then, the sales were not completed, it was through the fault of the appellee. The agent in such case is entitled to his commissions. Wharton on Agency, § 725. After acceptance of the order, the principal cannot rescind. Ib., §§ 316 (n), 325, 328. Appellee will not be allowed to profit by its own wrong. On the points involved see Nagle v. McNorton, 65 Miss., 197; 53 Ind., 294; 31 N. Y., 462; 38 Am. llep., 441; Roberts v. Kimmons, 65 Miss., 332; 68 Pa. St., 42.</p> <p>Stevenson did not obtain the notes of the purchasers and forward the same to appellee. The contract expressly provided that notes of a certain kind should be taken and forwarded, and, until this was done, the contract was not complete, and Stevenson was not entitled to any commissions. Besides, commissions were not to be paid until machinery was accepted by the purchasers, and the notes therefor paid. The conditions upon which Stevenson was to be paid his commissions have not been fulfilled.</p>

From the circuit court of Warren county. Hon. J. D. Gill and, Judge. This action, begun by attachment, was brought by the Rector Provision Company, of Vicksburg, Miss., against N. & W. Sauer, wholesale flour-dealers, at Red Bud, 111., to recover damages for an alleged breach of a contract to sell five hundred barrels of flour. It is denied, on the part of the defendants, that there was any contract valid under the statute of frauds.

Erom the circuit court of Sharkey county. TIon. J. D. Gilland, Judge. Shannon sued Rester on these claims: (1)' An account of $79.50, which showed that it was for plaintiff’s half-interest in certain cotton-seed sold defendant. (2) An account in favor of Shannon & Watts for $10.07, assigned to plaintiff'. (3) An individual account in favor of plaintiff against the defendant for $13.10. Plaintiff recovered judgment in the justice’s court for $22.07.

Prom the circuit court of Holmes county. Hon. C. H. Campbell, Judge. In January, 1889, G. I. Sample died leaving a will, by which he devised certain lands to G. J. Red, “with one request, that he give my father, J. A. Sample, $200 a year as long as he lives.” Red entered upon the enjoyment of the property, the annual income of which exceeded $200 a year.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Appellant, King, brought this action for damages against the Illinois Central Railroad Co., alleging that he had been unlawfully arrested and imprisoned by the depot agent of said company at Jackson, Miss.

From the circuit court of the second district of Hinds county. Hon. J. B. Chrisman, Judge. Appellee, Frederick Bolding, a ■ minor, by next friend brought this action in the court below to recover damages for personal injuries. . The declaration was against “Alabama & Vicksburg Railroad Company,” and the summons cohformed to the declaration. The return first made on the summons was: “Executed this twentieth of November, 1890.

Motion in the supreme court. This cause has been before the court at the present term on the appeal of the Alabama & Vicksburg Railway Co., from the judgment of the circuit court refusing to vacate a judgment, and the action of the court was sustained. See A. V. By. Co. v. Bolding, ante, p. 255. The defendant has now appealed from the original judgment, again executing a supersedeas bond, and that appeal is before the court.

From the circuit court of Tunica county. 1-Ion. R. W. Williamson, Judge.

From the circuit court of Harrison county. Hon. S. H. Terral, Judge. Appellants brought ejectment against appellee to recover a lot of land in the town of Biloxi, fronting south on Washington street fifty feet and running back noi’th eighty feet, bounded on the east by the lot of N. and Mary Pitre; north by Biloxi firemen’s property, and west by the lot of Zuberbier & Behan. This is the correct description.

From the circuit court of Adams couuty. Hon. W. P. Cassedy, Judge. William James, the appellee, made affidavit before a justice of the peace, under § 1388, code 1880, that Zelia Hawkins, his tenant, was holding over and refusing to deliver possession of the leased land after the termination of her tenancy; and, upon such affidavit, sought to recover the premises and terminate the tenancy.

From the circuit court of Leflore county. EEon. B. W. Williamson, Judge. Appellee, the Brunswick-Balke-Collehder Co., brought this action against Samuel J. Stein, maker, and J. T. Flanagan, indorser, of three promissory notes for fifty dollars each. The notes were given for part of the purchase-money of a pool-table and outfit bought by Stein from plaintiff.

From the chancery court of Lincoln county. Hon. H. C. Conn, Chancellor. On March 9, 1886, was passed “An act to remedy the evils arising from the destruction of the records of the counties of Pike and Lincoln in the burning of the court-houses of said counties.” Laws, p. 827.

<p>From the circuit court of Tunica county.</p> <p>Hon. R. W. Williamson, Judge.</p> <p>The opinion states the facts.</p> <p>When appellees filed their claim with the justice, there was no way to the circuit court except by appeal. The circuit court can have no jurisdiction to try this issue, which was not tried in the justice’s court. The dismissal of the attachment carried with it the whole proceedings. Laws 1884, p. 77.</p> <p>The right of stoppage in transit had been lost. That is a possessory one. Morris^. Shryock, 50 Miss., 590. Besides, the journey was ended, and the goods were sold in good faith. 60 Am. Dec., 188; 10 Tex., 2; 20 Vt., 172; 49 Am. Dec., 768.</p> <p>The courts extend a liberal aid to unpaid consignors in regaining possession of their property on its way to a buyer who will not be able to fulfill the terms of his purchase. Cross on Liens, 263. Nothing short of actual delivery or a bona fide sale of the goods can'defeat the seller’s right of stoppage. Harris y. Pratt, 17N.'Y., 249. Levy of execution or attachment does not take away the right. 1 Camp., 282 ; 15 Wend., 137; 4 Dana, 11; 15 B. Monroe, 270; 2 Kent’s Com., 550. Nor does the sale of the goods by order of court. 16 Md., 122; 8 Pick., 199; 2 New Kep. (5 Bos. & Pul), 64; 2 Bing. (N. 0.), 83; 14 Pa. St.,'48. All these authorities are cited with approval in Morris v. Shryock, 50 Miss., 590.</p>

Erom the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor. Appellant, Sue E. Witherspoon, filed this bill against the corporate authorities of the city of Meridian to cancel the claim of the city to certain land which it claimed under a dedication by a former owner for public streets. The bill further sought to enjoin the street commissioner from entering upon the land, and appropriating it for street purposes.

From the circuit court of the first district of Yalobusha county. Hon. James T. Fant, Judge. The Kingsland & Douglas Mfg.

From the circuit court of Copiah county. Iiox. J. B. Chrisman, Judge. Action by appellee against appellant for damages. Plaintiff recovered judgment for $250. Motion for new trial overruled, and defendant appeals. The facts are stated in the opinion. 1. This action is brought for damages for polluting the water flowing through plaintiffs' land. There is no complaint that defendant increased the amount of water flowing in the stream, and thus caused the lands to overflow.

<p>From the circuit court of Coahoma county.</p> <p>Hon. R. W. Williamson, Judge.</p> <p>Greenbaum & Kahn were merchants at Clarksdale, Miss. Greenbaum died in September, 1889, and Kahn continued the business, but in the firm name of Greenbaum & Kahn. Hnder the evidence, there does not appear to have been any authority for this, or for the use of the firm assets in continuing the business, if the assets were so used. On March 4, 1890, Brenner & Gaisman bought out Kahn, paying him for the goods on hand. At that time there were certain goods in transit, which had been purchased by Kahn after the death of Greenbaum, in the name of the firm, and Brenner & Gaisman agreed to take them. Afterwards, these goods arrived, and they took them as a part of the purchase, executing to Kahn a note therefor on May 15,1890, for $1,517.33, payable to Greenbaum & Kahn, October 16, 1890. Meantime, on May 12, 1890, the appellees, Hirsh, Lowenstein & Levy, creditors of Kahn, whose debts had been contracted after the death of Greenbaum, sued out attachments against Kahn, and garnished Brenner & Gaisman.</p> <p>The garnishees answered, denying any indebtedness to Kahn, and their answers were traversed. The plaintiffs in attachment recovered judgment against Kahn, and afterwards there was a trial of the garnishment issue, in. which they recovered judgment against the garnishee. On this last trial the above facts were shown, and, in addition, it was shown that Kahn, after taking the note of Brenner & Gaisman, payable to Greenbaum & Kahn, as above, assigned the same to B. Lowenstein & Bros., who transferred it to the Bank of Commerce, at Memphis, which collected the amount of the note from Brenner & Gaisman. The evidence shows that Brenner & Gaisman were garnished before Kahn assigned the note to B. Lowenstein & Bros., and, furthermore, that the last-named firm, before paym'ent of the note, agreed to indemnify the makers as against the possibility of having it to pay again.</p> <p>From the judgment in favor of plaintiffs in attachment, the garnishees appeal.</p> <p>The garnishees were not, in fact, indebted to the defendant, E. Kahn. The goods which they had purchased from him belonged to the firm of Greenbaum & Kahn. The money was not liable to the debts of Kahn, contracted in another business, after the death of his partner. The only interest which he had in the money was as surviving partner, and this interest could not be reached by garnishment. The note was partnership assets, and liable to the creditors of the firm. After purchasing this note, B. Lowenstein & Bros, had the right to collect it, and this right could not be defeated by the creditors of Kahn.</p> <p>There is no evidence that Kahn had authority to continue the business after the death of Greenbaum. The form of the transaction — taking a note payable to the firm — could not bind Greenbaum’s estate. After the death of Greenbaum, Kahn alone was liable for all debts contracted, and he had no power to bind the estate of his former partner. Bank of Port Gibson v. Baugh, 9, Smed. & M., 290. Hence, the consideration of the note was the individual property of Kahn. Taking a note after the garnishment, payable to a firm which did not exist, could not affect plaintiff’s rights.</p>

Prom tbe chancery court of Clay county. Hon. Baxter McFarland, Chancellor. In the spring of 1889, J. J. Kerr borrowed of his mother, Ada P. Kerr, $950, and with that amount, and upon the joint note of himself and mother for $800, he bought of B. Y. Khodes, administrator of the estate of G-. W. Taylor, a saloon business. He obtained the license to carry on the business in his own name, and about the time of beginning, took into partnership II. A. Montgomery.

From the chancery court of Copiah county. Hon. H. C. Conn, Chancellor. On the 21st day of June, 1891, B. F. Martin, a resident of Copiah county, departed this life, leaving surviving him a widow and eight children. Before his death he executed a will, disposing of his entire estate, which consisted of considerable property, real and personal.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. The opinion states the facts. Filed a very lengthy brief, which made, among other points, the following: It was error to allow plaintiff to amend by dismissing as to defendant Wolfe. In the original and first amended declaration, Solomon is charged with owning the entire rent as a partner of Wolfe, and as assignee of a half-interest in the unexpired term.

<p>1. Infant. Repudiation of contract. Retention of consideration.</p> <p>While an infant may escape personal liability on his contracts, he cannot, after repudiating a contract, retain as his own the fruits of it, if still in his possession.</p> <p>2. Same. Parchase by infant. Repudiating liability. Remedy of seller. Fraudulent conveyance.</p> <p>Where property is bought by an infant upon credit, and, when sued for the price, he pleads infancy, the seller may recover the property, the title being revested in him by the result of such suit; and, if it has been fraudulently conveyed by the infant to one not a bona fide purchaser-, the seller may, in equity, have cancellation of the conveyance and restoration of the property.</p> <p>3. Sane. Fraud of infant. Intermingling of goods. Fight of seller.</p> <p>And if such infant, before disposing of the goods, had intermingled them with his stock of merchandise, so that identification and separation became impossible, the complainant may subject to his demand the entire stock; or if the stock, being in custodia l'egis, has been turned into money, the complainant may subject the proceeds.</p>

From the circuit court of Leflore county. ITon. K.. W. Williamson, Judge. The appellant, H. C. Montgomery, an insolvent merchant, executed a voluntary assignment for the benefit of his creditors, giving certain of them preferences. The assignment purported to convey to the assignee “ all the property of whatever kind or description ” owned by the assignor.

Erom the circuit court of Amite county. Hon. W. P. Cassedy, Judge. The facts are stated in the opinion. The statute does not require the affidavit to show whether the debt is due or not. The grounds relied on will support attachment for either. Besides, the debt was past due when the declaration was filed. If the affidavit was defective, plaintiff should have been permitted to amend it, under § 2464, code 1880.

From the circuit court of Amite county. ITon. W. P. Cassedy, Judge. The opinion states the ease. It may be added that the record does not show with certainty how much of the debt was due and how much was past due. The amendment should have been permitted. The grounds for attachment could remain the same. The affidavit may be made on information and belief, and the statute does not require the affidavit to show whether the debt is due or not.

From the circuit court of Wilkinson county. Hon. W. P. Cassedy, Judge.

From the chancery court of Yalobusha county, first district. Hon. B. T. Kimbrough, Chancellor. Appellees, the widow and children of W. H. Womble, filed this bill to establish their title to eig’hty acres of land, and to recover possession of the same from defendants. The land is part of the estate of W. H. Womble, who died in 1882, and who had occupied the same as his homestead since 1869, and up to the time of his death.

From the chancery court of Wilkinson county. Hon. Claude Pintard, Chancellor. On the 9th day of'July, 1891, the appellee, W. N. White, filed the hill in this case against the appellants, F. D. Lewis, sheriff of Wilkinson county, and Gr. W. I8ente.il, and others.

From the circuit court of the second district of Yalobusha county. Hon. James T. Fant, Judge.

From the circuit court of Adams county. Hon. W. P. Cassedy, J udge. The appellee, William James, claiming that appellant, Zelia Hawkins, was indebted to him for rent of land, made affidavit, under code 1880, § 1302, as to the amount of rent due on the leased premises, and gave bond and security, as therein required, for an attachment for rent.

From the circuit court of Monroe county. Hon. Lock E. Houston, Judge. On the 3d day of December, ,1888, W. W. Watkins, being the owner of land in Monroe county, rented the same to Sam Martin and D. C. Helium, taking their joint note for $250, payable October 15, 1890. On January 31, 1889, said W. W. Watkins executed a deed, conveying to his wife, A. L. Watkins, the premises so rented, which deed was duly acknowledged, and was recorded February 16, 1889.

From the circuit court of DeSoto county. Hon. James T. Fant, Judge. Replevin for certain property distrained for rent. The cause was tried by the court, without a jury, upon an agreed statement of the facts, which was-substantially as follows : G. R. Keesee and wife filed a bill, in January, 1891, seeking partition of certain land in which they had an undivided two-thirds interest, the remaining one-third interest being owned by a minor.

From the circuit court of Tate county. Hon. James T. Fant, Judge. Jennie Johnson brought this action to recover of Eason, Watkins & Co. the value of four bales of cotton raised on her land by her tenant, and by the latter sold to defendants, leaving the year’s rent unpaid. It does not seem to be controverted that the cotton was grown on plaintiff’s land, and that the rent was due and unpaid. The defense mainly relied on is that defendants purchased without notice of the lien.

From the circuit court of Calhoun county. Hon. C. H. Campbell, Judge. J. B. Pate made affidavit before a justice of the peace of Yalobusha county that J. A. Shannon was indebted to him for rent, on land alleged to be situated in said county. On this affidavit, a warrant for distress was issued by a justice of the peace of Calhoun county; and the warrant, as well as the boud, recited that the leased premises were in Calhoun county.

From the circuit court of the first district of Hinds county. Hon. J. B. Ci-irisman, Judge. This is an action of mandamus against the auditor of the state, brought upon the relation of the board of supervisors of Warren county, to compel the auditor to pay to the treasurer of said county its distributive share of the common school fund of the state.

Motion,in the supreme court. The appeal in this case, on its merits, has. been decided at this term. See the preceding case. The mandamus suit having been appealed to this court, and here decided adversely to the auditor, the attorney-general has, by motion, invoked the judgment of the court as to whether the costs of the appeal are taxable against the auditor. ■

From tbe chancery court of Tallahatchie county. Hon. W. E. Trigg, Chancellor. The facts are stated in the opinion. The act of Februai’y 10, 1860 (Laws 1859-60, p. 213), provides in § 8 thereof that, “ no suit to set aside any title acquired under such [tax] sale hereafter to be made shall be brought unless within live years from the date of the sale.” The decree was in favor of defendants, dismissing the bill, and complainant appeals.

<p>Tax-title. Assessment-roll, Tallahatchie county, 1879. Failure to return.</p> <p>The land assessment-roll for 1879 in Tallahatchie county, not having been returned to the board of supervisors on the first Monday in July, was. * void, and a sale for taxes based thereon is invalid. Fletcher v. Trevjalla,, 00 Miss., 963.</p>

From the circuit court of Panola county. Hon. James T. Fant, Judge.

From the circuit court of Lincoln county. Hon. J. B. Chrisman, Judge. Appellant was convicted on a charge of unlawful retailing. The opinion states the case. But one sale is charged, a sale to two. The proof was of sale to one. This was a fatal variance. State v. Barron, 37 Vt., 57. The like rule applies as iu cases of larceny, where ownership of the property is laid in one, and the evidence shows a joint ownership by such person with another.

From the circuit court of Coahoma county. Hon. G-eor&e Winston, Judge. Appellant was convicted of the murder of one Lewis Hence, and his punishment fixed by the jury at imprisonment for life. A motion was made to set aside the verdict and for a new trial, assigning, among other grounds, that the jury was improperly influenced by certain conduct of the bailiff in attendance during the trial.

From the chancery court of Marshall county. Hon. B. T. Kimbrough, Chancellor.

From the chancery court of Harrison county. Hon. Sylvanus Evans, Chancellor. The appellant, Murphy, filed the bill in this case to foreclose a mortgage executed by Frank Jackson. The mortgagor, Jackson, was made a defendant to the bill, and so was B,. Seal, who, it was alleged, had some claim to the mortgaged laud, acquired from Jackson after the execution of the mortgage.

From the circuit court of Coahoma county. Hon. H. W. Williamson, Judge. Defendant was an agent employed by the Friar’s Point Oil Mill & Manufacturing Co., a corporation engaged in the manufacture of cotton-seed oil. He was paid a salary based on the number of tons of seed purchased, and when seed was bought he put it in a house provided by the company for the purpose, and was not authorized to buy for any other mill.

From the chancery court of Lee county. The Hon. Baxter McFarland, being disqualified, Newman Cayce, Esq., a member of the bar, was selected according to law, and presided as special chancellor in this case. In 1885, defendant, Mrs. Mclver, loaned to the complainant, Mrs. Clarke, $700, taking her note for the amount, payable at one year, and, as collateral security, she received from Mrs. Clarke the notes of one Siddall, which were given for the purchase-money of certain land.

<p>Common Carrier. Live-stock. Exemption under special contract.</p> <p>A common carrier of live-stock may, by special contract, stipulate with the shipper for immunity from liability for injuries caused by the animals being wild, unruly, weak, or of different sizes or classes, or maiming each other or themselves.</p>

From the circuit court of Claiborne county. Hon. J. D. Gtlland, Judge. Patterson, the appellee, sued the Louisville, New Orleans & Texas Railway Company in the justice court to recover $150 damages for an alleged wanton refusal by its conductor to provide him with a seat in a passenger-coach.

From the circuit court of Franklin county. Hon. W. P. Cassedy, Judge. Action for the death of plaintiff’s intestate. The declaration alleges that the deceased, Sidney Millsaps, while acting as fireman on one of defendant’s locomotives, was killed in a collision occurring through the negligence of defendant’s train-dispatcher, who was charged with the duty of directing the movement of trains.

Prom the circuit court of the first district of Yalobusha county. Hon. James T. Pant, Judge. The appellee, M, A. Pendergrass, administratrix of the estate of P. W. Henderson, sued the Illinois Central Railroad Company for injuries to the said Henderson resulting in his death.

From the circuit court of Monroe county. By agreement, Q-. J. Leetwitch, Esq., a member of the bar, presided in the trial of this ease. Action by appellant to recover the value of a mare killed on defendant’s track by a running freight-train.

From the circuit court of Coahoma county. Hon. R. W. Williamson, Judge.

From the circuit court of the first district of Hinds county. Hon. J. B. Ciirisman, Judge. Appellee, a young lady living in the village of Bolton, had promised, if sent for, to attend services at a country church, and assist with the music. The promise was made to a Mrs. McAlpin, and on Saturday Tom McAlpin, her son, who was an acquaintance of appellee, notified her that he would come for her the next morning.

From the circuit court of Alcorn county. Hon. Lock E. Houston, Judge. Appellee recovered judgment, in the court below, against the Memphis &.Charleston Railroad Company on account of personal injuries received by him at the intersection of defendant’s railroad and Franklin street, in the town of Corinth.

From the chancery court of Quitman county. Hon. W. R. Trigg, Chancellor. The bill in this case was exhibited by the board of supervisors of Quitman count}7 against William Stritze and others, seeking to cancel their claim to certain lots.

From the chancery court of Wilkinson county. Hon. Claude Pxntard, Chancellor. The appellant, Mary B. Barton, in her bill exhibited against L. W. Magi’uder and Mary J. Magruder, alleged substantially the following facts: She was the owner of a plantation in Wilkinson county, of the value of about $10,000.

From the circuit court of Monroe county. G. J. Buchanan, Esq., a member of the bar, presided as special judge, by consent. Action by D. S. Gregory against W. W. Watkins for breach of covenant of warranty. Gregory purchased from Watkins one hundred and sixty acres of land, receiving a warranty deed therefor in 1888. The laud was origiually owned by W. B. Thompson.

From the circuit court of Jackson county. Hon. S. H. Terral, Judge. Action upon an injunction'bond. W. E. & J. W. Mead purchased certain land, deriving title through successive conveyances from one Gf. M. Dees.

Motion in the'Supreme court. A judgment rendered in the circuit court of Noxubee county in favor of Jack Watly against the Mobile & Ohio Railroad Company has been reversed at the present term, on the appeal of the defendant, and cause remanded for a new trial.

Motion in the supreme court. In this case, pending in the chancery court of Lauder-dale county, an appeal, with supersedeas, was granted by Chancellor S. Evans, from an interlocutory order made by him in vacation, by which a receiver, appointed at the instance of appellants, was removed, and the property in his possession ordered to be restored to appellees, upon the execution by them of a forthcoming boud.

From the circuit court of Clay county. Hon. C. H. Campbell, Judge. Action by appellee, Mosley, against the appellant, Jamison, for the recovery of damages for an assault and battery by shooting. The suit originated in the first district of Chickasaw county, but, on application of the plaintiff, the venue was changed to Clay county. The case has been before this court twice prior to the present appeal. See Moseley v. Jami-son, 66 Miss., 52; 67 lb., 336.

From tlie circuit court of Monroe county. Hon. Lock E. Houston, Judge. This action was instituted by Amanda Owen against J. H. Marshall, sheriff of Monroe county, and the sureties on his official bond, to recover an amount alleged to have been lost by the failure of the sheriff to levy plaintiff’s attachment-writ on certain property.

<p>1. Principal and Surety. Indemnity. Public officer.</p> <p>A mortgage by a principal for indemnity of Ms sureties is valid, the liability of the sureties being a sufficient consideration; and the rule apjilies to a conveyance made by an officer (state treasurer) to indemnify the sureties on his official bond against loss by defalcations.</p> <p>2. Same. Priority. Subsequent lien.</p> <p>And where the bond is for a less sum than the officer’s indebtedness to the state, a conveyance given to indemnify his sureties will have precedence over a lien sought to be fixed on the mortgaged property by subsequent proceedings, instituted at the instance of the state to recover the general indebtedness of the officer.</p> <p>3. Same. Mortgage. Delay. Contingent liability.</p> <p>And where, because of successive terms, there are several bonds with different sureties, in an attack by the state, having a debt not protected by the bond, it is no objection to such a mortgage, executed by the'principal for indemnity of his sureties, that it contemplates delay in the disposition of the proceeds of the mortgaged property, in order that there may be a fixing of liability as between the different sets of sureties; nor will the conveyance be defeated because of the. contingency expressed therein that it is only to be made available in discharge of liability to be ascertained.</p> <p>4. Mortgage. Construction. Not an assignment.</p> <p>Such a conveyance, though embracing all the grantor’s property, is not an assignment, subject to the strict rules governing such instruments, but a mortgage, enforceable upon the contingency of liability and dependent on future developments.</p> <p>5. Mortgageor. Retention of possession; when not fraudulent.</p> <p>In this case, the fact that such a mortgage embraced personalty (a part of which was consumable in the use), and that the trustee did not take exclusive possession immediately, but permitted the property to remain for some months with the mortgageor, who used the income and the proceeds of sale of some of it in preserving the rest pending inquiry as to the fact of his defalcation and the liability of the different sets of sureties, was hold not sufficient to cause the transaction to be declared fraudulent in fact.</p> <p>6. Chancery Practice. Dismissal without prejudice; whew improper.</p> <p>Where there are several defendants denying complainant’s right to relief, and, after expiration of the time for taking testimony, the cause is set down, and a decree on the merits is made, as to some of the defendants no right to any relief whatever being shown, though the decree contains no ’ express adjudication releasing them, it is error at a subsequent term, before entering a final decree, to allow complainant to dismiss the bill as to them without prejudice of the right to sue again. The cause having-reached such a stage, it is too late to dismiss the bill as of course.</p>

From the circuit court of the first district of ITinds county. Judge J. B. Ciirisman being disqualified, Hon. C. IT. Campbell, judge of the fifth district, presided by consent. This is an action by the state upon the bond of Hamilton, Allen & Hoskins, lessees of the state penitentiary. This cause has been twice before this court. See Hamilton v. The State, 67 Miss., 217; Hamilton v. The State, not reported.

From the chancery court of Lafayette county. Hon. B. T. Kimbrough, Chancellor. J. M. Hall was the treasurer of Lafayette county for two terms — 1884 to 1888. Held: in the former litigation, that the sureties were not liable at lato. 3. If the guaranty does not express the intention, a court of equity will reform it. DeGolyar on Guaranty, p. 3; 38 Conn., 508; 51 Miss., 511.

From the chancery court of Coahoma county. Hon. W\ R. Trigg, Chancellor. The large body of land in controversy, situated in Coahoma county, was, previous to the late war, -owned by one Shotwell.

<p>■1. Municipal Corporation. Neglect to repair bridge. When liable.</p> <p>Recovery cannot be had of a municipality for injuries caused by the falling of a defective bridge, unless it be shown that the defect was known to the authorities, or was so notorious that it was negligence not to know it. If the defect was concealed, and not observable by ordinary care and attention, the municipality is not liable.</p> <p>2. Same. Contributory negligence. Knowledge of danger.</p> <p>If, in such case, the plaintiff, knowing the bridge to be unsafe, ventures upon it without apparent necessity, and is injured, he is guilty of such contributory negligence as will bar a recovery.</p>

From the circuit court 'of Hinds county, second district. Hon. J. B. Chrisman, Judge. Ejectment by appellants against appellee. The locus in quo was purchased in 1878 by Richard Thomas from one Mo.A1 pin. ,The deed, as first written, was to Alexander Thomas, a son of Richard, and, as thus drawn, was by Richarel filed for record, his purpose presumably being to give the land to his son.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Appellants, G. W. Faison & Son, were consignees of certain merchandise shipped on a through bill of lading from Philadelphia, Pa., to Vicksburg, Miss.

Erom the chancery court of Monroe county. IIon. Baxter MoEarland, Chancellor. The bill in this case seeks a sale for partition of certain land in Monroe county, consisting of forty acres in section 27 and the adjoining forty acres in section 26, township 13, range 17. On the land in section 27 are situated certain mineral springs, known as Greenwood Springs, and a hotel and cottages to accommodate visitors. The original bill was filed Eebruary 23, 1887, by S. Á.

<p>1. Land. Licensee. Parol gift. Estoppel.</p> <p>A father licensed his son to enter upon a }>art of his land, under a parol agreement that the son should occupy and pay taxes on such part, and, on a certain contingency, receive a deed. The land continued to be assessed to the father. Subsequently a railroad was built across it; and, after condemnation proceedings and considerable litigation as to the right of way between the company and the father, it paid him, and received a deed for the right of way. All this was known to the son, who attended upon the litigation, but remained silent. Ildcl, that he cannot in equity controvert the title conveyed by his father, although he had been in possession, in the manner stated, for more than ten years, and had received a deed from his father, which was recorded just before the latter executed the deed to the company, it not having actual notice of his deed. See Railway Co. v. Day, 07 Miss., 227. — Hep.</p> <p>2. Chancery Pleading. How construed. Injunction. Insufficient averment.</p> <p>A railroad company filed a bill averring its right to cut certain trees by virtue of a deed conveying to it a right of way, “ and the right to fell any timber beyond the right of way which is sufficiently near the track of said road to fall on or obstruct the same; ” and sought, among other things, to enjoin an action against it for “trespass in going outside of the right of way and felling timber or trees in section 20,” etc. The evidence did not definitely locate the trees within the section. Held, that a decree enjoining the trespass suit is erroneous, and must be reversed, since complainant failed either to aver or show that the trees, for the cutting of which the trespass suit was brought, were such as the deed gave it a right to fell.</p>

From tlie chaucery court of Lee county. -Hon. Baxter McFarland, Chancellor. Carter Bros. & Co. exhibited this bill in the chancery court of Lee county, against G-. W. Barrett, a citizen of Prentiss county, John Dulaney and George Sloan, citizens of Lee county, and against G. B. Oliver, a citizen of the state of Texas.

From the chancery court of Warren county. IIon. Claude Pintard, Chancellor. In the year 1877 Frank Walker died intestate; leaving a widow and children, the appellants in this case. At the time of his death he owned, and was living upon, the north | of lot 11, square 1, Springfield, in the city of Vicksburg, and his widow and children have lived there ever since, this being the only land owned or claimed by them or the said Frank Walker in the city of Vicksburg.

From the chancery court of Lauderdale county. Hon. Sylyanus Eyans, Chancellor. In October, 1886, the appellant, Annie E. Chiles, tiled a bill in the court below against G. W. Gallagher et al., seeking thereby to establish her title to certain land, and to remove clouds therefrom.

From the circuit court of Prentiss county. Hon. Lock E. Houston, J udge. Action by J. T. Barnett against appellees, A. J. Dalton and the sureties on his bond as sheriff- of Prentiss county. The declaration alleges, as a breach of the bond, that the sheriff- had levied an attachment in favor of Barnett against one Maxwell on a certain stock of goods, and that the same was destroyed by fire through the negligence of the defendant, Dalton, whereby plaintiff lost his debt.

From the circuit court of Lafayette county. Hon. W. M. Rogers, Judge. The appellant, Y. J. Butler, instituted this action against the town of Oxford to recover damages for personal injuries sustained by her through the alleged negligence of the defendant in respect to one of its streets. The case was tried twice. The first trial resulted in a judgment for defendant, which, on motion of plaintiff, was set aside.

From the circuit court of Lincoln county. Hon. J. B. Chrisman, Judge. The appellant was tried on an indictment containing two counts.

From the circuit court of the hrst district of Hinds county. Hon. J. B. Ciirisman, Judge. Appellant, Lemly, a druggist, was indicted, presumably under § 1109, code 1880, for unlawfully selling vinous and spirituous liquors — namely, alcohol — in less quantities than one gallon.’ The defense mainly relied on was, that alcohol is not a vinous or spirituous liquor within the meaning of the statute, and that its sale was as a medicine, and, therefore, not unlawful.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. Action by appellee against the Louisville, Netr Orleans & Texas Railway Company for personal injuries. Plaintiff was seven years old, and lived with ber mother near the railroad. On the day of the injury she was sent by her mother to an adjoining plantation to play with other children. There she was taken sick with a chill, and was sent home by her relatives.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Plaintiff, a minor about nineteen years of age, was injured while in the employ of the Illinois Central Railroad Company as a brakeman on a freight-train. He alleged in his declaration in this ease that the railroad company was negligent in its duty of furnishing suitable appliances, and that he was injured by reason of a defective coupling.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. Action by appellant against the Mobile & Ohio Railroad Company fpr injuries received through the alleged carelessness and gross negligence of defendant’s servants. The iuj ury occurred at JBrooksville, Miss., about twelve o’clock in the day. At the place where the injury occurred, there is a side-track on either side of the main line, which runs north and south. The depot is just east of the east side-track.

Prom the circuit court of Warren county. Hon. J. D. Gilland, Judge. Appellee, Mrs. Purnell, took passage on appellant’s railroad at Vicksburg, intending to go, via Meridian, to Tuscaloosa, Ala. She bought her ticket intending to leave on the evening train, but, as it was delayed, she waited for the train that left the next morning. She had with her an infant some fourteen months old, and occupied an apartment in the sleepiug-car.

From the circuit court pf the first district of Hinds county. Hon. J. B. Chrisman, Judge. Harriet Jones brought this action to recover one hundred and fifty dollars damages from the Western Union Telegraph Company for its failure to transmit and deliver the following message sent by her: “ To Patsie Greenwood, Clinton, Miss.: Ella died last night. Send wagon.

From tbe circuit court of Montgomery county. Hon. C. H. Campbell, Judge. By tbe act of 1886, in relation to public schools (Laws, p. 63), towns constituting separate school-districts, are required to annually levy a tax sufficient to maintain the public schools therein at least three months, besides the constitutional period of four months. By the same act each county is required to levy upon its taxable property a school-tax of three mills or more.

From the circuit court of the second district of Hinds county. Hon. J. B. Chrisman, Judge. Appellant, Thomas, was sheriff of Hinds county from the year 1882 to 1889 inclusive, .and, during that period, he served upon the various road-overseers of the county notices of their appointment, aggregating more than fifteen hundred.

Prom the circuit court of Attala county. Hon. C. H. Campbell, Judge. Ejectment by appellee against appellant. The laud in controversy, consisting of two hundred acres, was originally owned by one Riddle, -who conveyed it, in 1869, to D. B. Massey by a deed, which the latter withheld from record. Prior to his death, in 1871, Massey altered the deed by erasing the initials of his name as grantee, and inserting those of his wife.

From the chancery court of Issaquena county. Hon. W. R. Triso, Chancellor. Appellee, Walter W. Taylor, filed this bill, in 1887, to vacate a judgment by default, rendered in 1884 at the return-term, against him in the circuit court of Issaquena county, in favor of appellants, H. & C. Newman, for $2,292.47.

From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. Appellees, Ragsdale & Co., filed their petition in a justice court against Walter Fuller, contractor, and A. McC. Kimbrough, owner, to enforce a lien for the price of materials furnished in the construction of a dwelling-house by the said Kimbrough. The petition averred a joint liability of the defendants under a verbal contract by which the materials were furnished.

Prom the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge. Appellant sued out an attachment against appellee, alleging that she was a non-resident of this state. The writ was levied on certain cotton in Yazoo county. Defendant traversed the grounds of attachment, and there was a trial of the issue. The evidence shows that defendant owned a plantation in Washington county, Miss., and that plaintiff was employed as manager thereon.

From the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge. This is an action by Wirt Adams, the state revenue agent, to recover of J. L. Thibodeaux a privilege tax which it is alleged he is due the state. Thibodeaux was a merchant in 1888 and 1889, and the declaration alleges that he sold and gave away vinous and spirituous liquors at his place of business without having paid the privilege tax, which, under § 1109, code 1880, he was required to pay.

From the chancery court of Tate county. Hon. B. T. Kimbrough, Chancellor. Prior to June 20, 1889, Gilliland Bros. & Co., a firm composed of J. F., F. N. and ~W. R. Gilliland, had been engaged in a general mercantile business in Coldwater, Miss., and, as such, became indebted to Day, Horton & Bailey, commission merchants in Memphis, Tenn., in the sum of about $15,000, most of which was for money advanced to carry on their business.

From the chancery court of DeSoto county. Hon. B. T. Kimbrough, Chancellor. Held: objectionable. Burrill, Assignments, 356, citing 3 Barb. Ch., 644. There is no difference between reserving the right to appoint a successor and reserving the right to name another assignee if the one named should decline to accept.

From the circuit court of DeSoto county. Hon. Jambs T. Fant, Judge. W. T. Zook sued John D., George and Marlin Wilson aS partners in trade, under the firm name of Wilson & Bros., on an open account for $480.21, for cutting and hauling saw-logs. The defendants, George and Marlin Wilson, pleaded the general issue, and also filed a special plea, denying that a partnership existed between them and John D. Wilson.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. Action by appellant against the First National Bank of Greenville, Miss., to recover $1,047.60, alleged to have been deposited with the bank, as the money of plaintiff, by one Lamon.

From the circuit court of Pontotoc county. Hon. Lock E. Houston, Judge. The opinion states the case. The court should, have corrected the improper enrollment, placing appellants’ judgment first on the roll. Their suit was first on the docket, and their judgment appeared first on the minutes of the court. Code 1880, § 1736. Where several judgments are rendered on the same day, they take precedence, as a lien, according to their order on the minutes.

From the circuit court of the first district of Panola county. BLon. James T. Fant, Judge. The appellee, A. F. Minor, brought this action to recover of the Illinois Central Railroad Company damages for personal injuries suffered by him while a passenger. The injury was caused by a pistol, carelessly or wantonly discharged by a fellow-passenger in the same ear with plaintiff.

From the circuit court of Tunica county. Hon. R. W. Williamson, Judge. The appellee, Isaiah Douglass, was living in Tunica county, about twenty miles north of Tunica station, on the line of the Louisville, New Orleans & Texas Railway. His son, Charles Douglass, about sixteen years of age, had left home in 1890, and had gone to Tunica.

From the circuit court of Washington county. Hon. K,. W. Williamson, Judge. Helm, the appellee, brought ejectment against the appellant, Archer, to recover a narrow strip of land lying along the boundary line between their plantations. The controversy involves the correctness of the location of the boundary line between their lands.

From the circuit court of Quitman county. Hon. R. W. Williamson, Judge. The case is stated in the opinion. No briefs on file. The general rule is, that a judicial or grosi-judicial discretion cannot be controlled by mandamus. An exception to the rule is, that where no remedy is provided by appeal, and there is a flagrant abuse of discretion, by the corrupt and arbitrary exercise of it, mandamus will lie. 98 Am.

From the circuit court of Quitman county. Horn N. W. Williamson, Judge. This is a proceeding by information in the nature of a quo warranto, instituted March 9, 1890, in the name of the attorney-general, on the relation of W. T. Covington, against J. I). Andrews.

From the chancery court of the first district of Hinds county. Hon. H. C. Conn, Chancellor. The case is stated in the opinion. The former decree, canceling the tax-title of 1868, is conclusive against appellee, who holds through one of the defendants in that suit.

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

Prom the chancery court of Washington county. Hon. W. R. Trigg, Chancellor. The appellant, Lizzie A. Billingsley, living in Arkansas, forwarded for collection to the Bank of Greenville, in this state, a note for $1,000, the maker of which lived in or near Greenville. The note was duly presented to the maker, and paid by the check on said bank of one Evans, who had ample funds on deposit.

From the circuit court of Tunica county. Hon. R. W. Williamson, Judge. James Davis sued out before a justice of the peace a writ of seizure, under the act of 1884 (Laws, p- 84), to enforce payment of a debt due him by one Miller for labor done in cutting and hauling certain saw-logs. The affidavit alleged that the logs were the property of Miller, and were in his possession.

From the chancery court of Coahoma' county. Hon. W. R. Trigg, Chancellor. The opinion states the facts. It may be added that the statutes of New York provide that contracts for the loan of money at a rate greater than six per cent, per annum shall be void; and, further, that the court of chancery shall decree such contracts void, and enjoin any prosecution thereon, and order the same to be surrendered and canceled. 3 Rev. Stat. N. Y., 2254, § 8.

Prom the chancery court of Tunica county. Hon. W. JR. Trigg, Chancellor. .

From the chancery court of Webster county. Hon. Baxter McFarland, Chancellor. A. Or. Young died intestate, in 1878, owning certain land in Webster county. He owed no debts, and thei’e was no necessity for administration. His widow, M. J. Young, and the six children of her husband by a former marriage, agreed verbally among themselves that the widow should take a child’s portion of the estate in lieu of her dower.

From the circuit court of Tallahatchie county. Hon. H. W. Williamson, Judge. The case is stated in the opinion. I maintain that there is no evidence to sustain the granting of the peremptory instruction. The court gave it for the single reason that the defendant had shipped property out of the state. It is lawful for a debtor to ship his property out of the state to his creditors, to be sold and proceeds applied to the payment of debts.

From the chancery court of Clarke county. Hon. S. Evans, Chancellor. This is an appeal taken from the order of the chancellor in vacation appointing, a receiver upon the application of certain creditors of the firm of Sim Perry & Co. No proof was taken in support of the application for the receiver, the appointment having been made upon the allegations of the bill, which was sworn to by one of the complainants.

From the circuit court of Sharkey county. Hon. J. D. Gilland, Judge.

<p>From the circuit court of Coahoma county.</p> <p>Hon. R. W. Williamson, Judge.</p> <p>On February 19, 1892, was approved an act of the legislature, entitled “An act to divide the county of Coahoma into two circuit court and chancery court districts.” By this act it was provided that the county of Coahoma should be divided by a designated line into two circuit and chancery court districts; that the courts of the first district should be held at the town of Friar’s Point, aud those of the second district at the town of Clarksdale; that the sheriff, chancery clerk, circuit clerk, and'other officers of-the county, should exercise the duties of their respective offices in both districts; that the board of supervisors should hold their meetings alternately at Friar’s Point and Clarksdale; that the territorial jurisdiction of the circuit and chancery courts within each district should be limited to the district, and that crimes aud misdemeanors should be cognizable only in the proper court of the district in which the offense should be committed. By the said act the board of supervisors was authorized immediately to secure a suitable building in the town of Clarksdale for the court-house, and, if necessary, to issue bonds to obtain the necessary funds. The act contains many other provisions to carry out its purpose, the effect of them all being that the districts are made separate and distinct in all matters pertaining to the circuit and chancery courts, and in almost all pertaining to the administration of county affairs.</p> <p>The board of supervisors of said county, at a special meeting in February, passed an order to carry this act into effect, aud made provision to rent a building for a court-room, jail and offices for the sheriff and clerks at Clarksdale. There-, upon, the appellants, who are eitizens and tax-payers of Coahoma county, presented to the chancellor of the district in which the county is situated a bill, asking an injunction to restrain the board of supervisors from further proceeding iu the matter, but the chancellor refused to grant the injunction.. They then asked the circuit judge for a writ of certiorari to bring the order of the board of supervisors before the circuit court for review, but this was refused. They then filed this petition in the circuit court at Friar’s Point for a writ of prohibition against the board of supervisors, to restrain it from further proceeding to execute the said order, or taking any steps under said act of the legislature, which the petitioners allege is unconstitutional. The board of supervisors appeared and demurred to the petition, and the demurrer was sustained, whereupon the petitioners appealed.</p> <p>The constitutional and legislative provisions having reference to the questions involved are set out in the opinion of the court. Section'260 of the constitution of 1890, a clause of which is quoted in the opinion, is as follows:</p> <p>“No new county shall be formed unless a majority of the qualified electors voting in each part of the county or counties proposed to be dismembered and embraced in the new county, shall separately vote therefor; nor shall the boundary of any judicial district in a county be changed, unless, at an election held for that purpose, two-thirds of those voting assent thereto. The elections provided for in this and the section next preceding shall not be held in any county oftener than once in four years. No new county shall contain less than four hundred square miles; nor shall any existing county be reduced below that size.”</p> <p>Other sections of said constitution which are invoked by counsel for the appellants are § 259, which prohibits the' removal of the county seat of the county unless it be authorized by two-thirds of the electors of the county voting therefor, etc., and § 271, which gives authority to consolidate existing counties if the majority of the qualified electors vote therefor.</p> <p>Prior to the constitution of 1890 this legislation might have been constitutional, for the legislature had plenary power to change county seats, or refer the question to the people, or to create two districts in a county, or to create new counties, but, under the present constitution, the act of the legislature is void, (1) because it violates the plain letter of § 260, by changing the boundary of a judicial district in the county; (2) because it attempts to do indirectly what cannot be done directly, namely, to remove one-half of the county seat from Friar’s Point and practically make two counties out of the territory of one, without a vote of the people, as required by § 259. It is apparent from these sections and § 271, which makes a vote of the people necessary to the consolidation of existing counties, that the policy established by this constitution, is to prohibit any kind of dismemberment in counties without the consent of the electors interested. The county is a judicial district, since by tliis expression is meant the limited or territorial jurisdiction of courts to be held therein. Smith v. State, 67 Miss., 116; Price v. Anderson, 65 lb., 410; 3 Bouvier’s Inst., 72.</p> <p>A county is a government within a government, and its voters must be consulted on all matters pertaining to it. Daily v. Swope, 47 Miss., 367; 5 Pick., 277.</p> <p>“A judicial district in a county” is the territorial limit of the jurisdiction of the circuit, chancery and supervisors’ courts held therein: The boundary of the county is the boundary of the judicial district.</p> <p>The constitution provides that circuit and chancery courts shall be held in .each county, etc. Section 1469, code 1880, provides that a court, to be styled .the circuit court of the county of-, shall be held in each county, etc. It is not the circuit court of the fourth judicial district to be held for the county of Coahoma, but the circuit court of the county of Coahoma, held in the county of Coahoma. The fact that the change necessarily changes the jurisdiction over crimes, shows that there is a change of territorial jurisdiction.</p> <p>Under the act of 1892, Friar’s Point is no longer the county seat of Coahoma county. It is still a county seat, but half of its jurisdiction has been taken away.</p> <p>The line dividing the county divides three justice’s districts in the county. This creates inextricable confusion. The schedule of the constitution, which continues the laws repugnant to it, does not apply to correct this, for, under the act of 1888, justice’^ districts must be the same as those for members of the board of supervisors.</p> <p>The act is unconstitutional, because it provides for taking prisoners from their vicinage for trial. It denies to the accused the right to be tried by a jury of. thé county where the offense is committed. This act violates the bill of rights, even -as limited in Alfred v. State. The evasion of the constitution is a violation of it. Brien v. Williamson, 7 How. (Miss.), 14.</p> <p>The legislature cannot do indirectly what it cannot accomplish directly. Fant v. Gibbs, 54 Miss., 396; People v. Marshall, 12 111., 391.</p> <p>For authorities in analogous cases, see Gotcher v. Burroios, 9 Humph., 585; Grundy County v. Marion County, 5 Sneed, 490; 5 Pickle, 277 ; 26 Pac. Rep., 983.</p> <p>Alfred v. The State, 37 Miss., 296, upheld a statute similar to this, passed under the constitution of 1832. That constitution guaranteed a speedy and fair trial by an impartial jury of the county where the offense was committed. The objection to the act for this must be regarded, then, as settled, since these two succeeding constitutions have been passed, neither of which change the policy or show antagonism to the decision in that case.</p> <p>The constitutions of 1817 and 1832 provide that the legislature shall divide the state into “ convenient districts.” Alfred v. State was decided under a constitution which provided “that the state shall be divided into convenient districts.” Section 152, constitution 1890, provides for the division of the state “into convenient circuit and chancery court districts.” Prior to 1858 the legislature had been doing this by the organization of several counties into districts, but by the act of 1858 it began to divide counties into two judicial districts. By judicial district is meant the districts of a county for the holding of circuit and chancery courts. The county as a whole is never regarded as a judicial district.</p> <p>The “boundary of a judicial district in a county” must mean the line which separates the two districts. The boundaries of a county are not referred to by § 260 of the constitution of 1890. There may be boundaries of, or for, a county, but there are not boundaries in the county. The act in question was not designed to change boundaries. The legislature may divide a county into ten judicial districts, and it might become important to do so, if the population should reach a million.</p> <p>The views above advanced are the only ones which will harmonize §152 with §260. Section 259 has no relevancy here. This act changes no county site. Friar’s Point remains a county site. If the making of two judicial districts be the removing of the county site, there is no necessity for §259, which expressly forbids such removal.</p> <p>There is nothing in the position that the act practically makes a new county of less than 400 square miles, in violation of § 260. The mere fact of finding this prohibition in the section is, by the whole collocation, conclusive that th,e framers distinguished this from changing the boundaries of judicial districts. Besides, there is no new county made. It is idle to suppose that §260 has reference to supervisors’ or justices’ districts. They have never been regarded as judicial districts.</p> <p>1. The act of 1892 is not obnoxious to § 259 of the constitution of 1890. The effect is to give the county two county seats — not to remove the existing seat to a different town. There is no inherent impossibility in such a thing. Even states have existed with two capital cities. There is no necessary connection between the county seat and the locality of the courts having jurisdiction over the territory of the county. Even when a new county is created out of an old county, the latter retains jurisdiction in the new county until it is attached to some district. Bunge v. Wyatt, 25 Tex., 291 (supplement).</p> <p>The very meaning of the word “remove” excludes the interpretation contended for by appellant. On this point see State v. McFadden, 23 Minn., 40.</p> <p>The act does not violate § 260 of the constitution. In interpreting clauses, we must presume that words have been employed in their natural and ordinary meaning. Cooley, Con. Lim., 73; 130 IJ. S., 670. Effect must be given to the words “in a county,” and this can be done only by construing the clause to refer to judicial districts which are comprised within a county. The word “in” cannot have the signification sought to be attached to it by appellants. It never expresses the relation of coterminousness.</p> <p>The words “judicial district” in a county must apply to just such districts as this act creates, and cannot apply to a whole county considered as a judicial district.</p> <p>If it were a new question in Mississippi, whether an act like this was violative of constitutional provisions, I should say, without hesitation, the right did not exist, but, since the decision in Alfred v. State, upholding' such legislation, we have had two constitutions, neither of which denied this right, or condemned the decision. The question must now be considered as forever at rest. It is obvious, from a reading of our present constitution, that the whole subject of change of county seats, the creation of new counties and the change of boundaries of judicial districts, received the fullest consideration, and the limitations to be imposed were made clear.</p> <p>In view of legislation on this subject, we must suppose that the convention of 1890 did not mean to prohibit this sort of legislation.</p>

From the circuit court of DeSoto county. JIon. James T. Fast, Judge. In September, 1890, the appellant, Johnson, purchased from the appellee, Stone, the latter’s plantation, and the farming implements and stock thereon. At the time of the bargain a memorandum thereof was made by Johnson. A few days afterwards Johnson and Stone met, by appointment, to consummate their trade.

From the chancery court of Tallahatchie county. Hon. W. it. Trigg, Chancellor. Held: claiming title, thereafter. The deed, if void, was color of title. The acceptance of a deed from Payne by Eggleston did not operate to change his relation to the complainants. That transaction could not establish a co-tenancy between complainants and Eggleston.

From the circuit court of Jackson county. Hon. S. H. Terral, Judge. Appellee, Maduel, sued out an attachment against Betancourt and another, on the ground of non-residence. The writ was levied on certain property of Betancourt.

Prom the circuit court of Yazoo county. Hon. J. JB. Ohrisman, Judge. Action by appellee on a promissory note executed at Y azoo City, March 3, 1887, as follows: “One year after date we promise to pay to the order of Mary S. Powell, four hundred dollars, with ten per cent, interest from date. Yalue received. “JR. G. Hudson, “J. P. Moore.”.

From the circuit court of Clarke county. Hon. S. H. Terral, Judge. Action by appellant against appellee for the alleged wrongful and negligent killing of plaintiff's son, aged nineteen years and four months, on the first day of May, 1891. Deceased was engaged as a brakeman on a freight-train, of which his brother was conductor. He was employed by the yardmaster of defendant at Meridian, who knew that he was a minor.

From the circuit court of .the first district of Hinds county. Hon. J. B. Chrisman, Judge. King brought this action, in August, 1890, against the Illinois Central Railroad Company, to recover damages for an alleged unlawful arrest and false imprisonment by its depot master.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. The opinion contains a statement of the facts. 1. No action was begun. Section 1522, code 1880, requires more than the filing of a declaration. In this case the defenclant was not served with summons. No valid summons was ever issued, and there was no alias summons. This court will presume that the action of the court below in setting aside the judgment, was correct, since there is no bill of exceptions.

Prom the circuit court of Pike county. Hon. W. P. Cassedy, Judge. Appellees recovered judgment against appellant in the court below for the full amount of the notes mentioned in the opinion. Prom such judgment this appeal is taken. Several questions were presented by the record and argued by counsel. The controlling question is stated in the opinion of the court, which gives a sufficient statement of the facts. It was error to overrule the demurrer to the replication.

Prom the chancery court of Noxubee county. Hon. T. B. Q-raham, Chancellor. Selleck & Bush were merchants in the town of Macon, Miss., and in December, 1890, finding themselves embarrassed with debts and unable to continue business, consulted with their attorney with a view to making an assignment. They had assets to the nominal value of about $40,000, the actual value being much less, and their indebtedness exceeded $30,-000.

From the circuit court of Hancock county. Hon. S. H. Terral, Judge. This is an action of unlawful detainer by Eppie E. Barr against Rosa Young, to recover a strip of land ten feet wide and three hundred and fifty feet in depth, lying along a disputed boundary between their respective lots. Plaintiff' acquired her lot by purchase from Mrs. L. C. Shropshire.

From the chancery court of Pike county. Hon. H. C. Conn, Chancellor. The facts are sufficiently stated in the opinion. The evidence shows: 1. The Mississippi Valley Land Company, in 1876, four years before Bergland purchased, dedicated the street to the. public, and offered and sold lands in squares adjoining, laid oft’ on the plat in reference to these streets. 2. That company, the. then owner, admits the dedication, and insists upon its enforcement. 3.

From the chancery court of the first district of Hinds county. Hon. H. C. Conn, Chancellor.

Erom the chancery court of Yazoo county. Hon. H. O. Conn, Chancellor. Appellees, Louis and Herman Wise, partners as Wise Bros., filed this bill seeking reformation of certain deeds, because of an alleged mistake in the description of land. The history of the title, as shown by the record, is as follows: Tbe land is part of a large tract originally owned by John Everett, who is the common source of title.

From the circuit court of Warren county. Hon. J. D. Gtlland, Judge. This action was instituted in March, 1892, in the name of the state, by Wirt Adams, revenue agent, against Lodge No. 95, Benevolent and Protective Order of Elks, to recover $800, the amount of privilege tax imposed by law upon retailers of vinous, spirituous and malt liquors.

From the circuit court of Warren county. Hon. J. D. G-illand, Judge. Sproule and Fredericks were opposing candidates for the office of assessor of Warren county, at the general election held in November, 1891. Fredericks was declared elected by a majority of eight votes. Sproule filed his petition to contest the election.

<p>1. Principal and Surety. Assignment of Mortgage. Payment.</p> <p>Where a mortgage is given by the principal debtor to indemnify his surety, and the surety assigns it to the creditor on account of the debt, by the mere acceptance of the mortgage, the debt for which the surety is liable is not paid.</p> <p>2. Same. Dealing with mortgaged property. Discharge of surety pro tanto.</p> <p>Where a mortgage is so assigned by the surety to the creditor, the improper or negligent conduct of the latter in dealing with the property mortgaged, will not release the surety from the debt, but will operate merely to discharge him to the extent of the loss sustained in consequence of the negligence or misconduct of the creditor. Olopton v. Spratt, 52 Miss., 251.</p> <p>3. Trust in Land. Record. Code 1880, ? 1290. Showing deed to he mortgage.</p> <p>In the case of a recorded deed to lands, reciting a nominal consideration, an unrecorded contemporaneous writing, showing the conveyance, though absolute in form, to be a mortgage securing certain debts, is not condemned by § 1296, code 1880, which makes void all declarations or creations oí trusts in land, unless in writing, acknowledged and recorded. The conveyance being of record, the failure to record the writing showing its real character will not affect the validity of the mortgage.</p> <p>4. Fraudulent Conveyance. Mortgage. Debts extended. Case.-</p> <p>While ordinarily no further time should be granted in a mortgage to secure 'pre-existing debts than is usually required to make collections by suit, where a debtor, by way of mortgage, conveys to a trustee for certain creditors, whose debts are large, a correspondingly large amount of property, mainly wild lands, and the secured debts are extended two years, if the lands cannot sooner be sold for a named price, the secured creditors stipulating to pay accruing taxes, and none of the property being consumable in the use, the conveyance will not be declared fraudulent as to other creditors. Bank v. Douglass, 11 Smed. & M., 469, and Henderson v. Downing, 24 Miss., 106, distinguished.</p> <p>fi. Chancery Practice. General prayer. Other relief consistent with bill.</p> <p>Under the prayer for general relief, the complainant may have other relief than that prayed, if such other relief is not inconsistent with the purpose of the bill.</p> <p>6. Same. Attaching land. Mortgage. Subjecting equity of redemption. Case.</p> <p>Accordingly, where a creditor, by attachment in chancery, seeks to subject to his debt lands of a non-resident debtor, and, as an incident, to cancel as fraudulent a conveyance by the debtor to a co-defendant, if this conveyance is shown to be a mortgage and not fraudulent, under the prayer for general relief, complainant is entitled to a decree subjecting the debtor’s equity of redemption.</p>

Prom tbe circuit court of tbe first district of Hinds county. Hon. J. B. Chrisman, Judge. Tbe opinion contains a statement of tbe facts sufficient to illustrate tbe only point passed upon by tbe court. It will be seen that tbe court bolds that tbe granting of tbe peremptory instruction in favor of the plaintiff was erroneous in view of tbe evidence, which tends to support the fifth plea of tbe defendant.

From tlie chancery court of Lowndes county. Hon. T. B. Graham, Chancellor. The opinion states the facts. There is no clause in this will against alienation, no provision for forfeiture, nor that the income shall be liable for Thomas Harrison’s debts; no provision that it shall only be paid on his written order, and no provision that it shall only be paid to him personally. He has an absolute, unqualified right to it, the only limitation being that it shall be paid quarterly.

From the circuit court of DeSoto county. Hon. James T. Fant, Judge.' The case is stated in the opinion. Without particularizing the several sections of the constitution, which, it is claimed, the power sought to be vested in the guardian violates, we submit that the legislature, as parens patria., is vested with the power to protect citizens under disability. For a learned discussion of this subject, see 2 Story, Eq. Jur., § 1333; 10 Am. Jurist, 297.