Volume 70 — Mississippi Reports

<p>' Note. — This case was decided at the October term, 1890, and should have been reported in 68 Miss., but, through some inadvertence, it was omitted.</p> <p>Hep.</p>

From the circuit court of the first district of Hinds county. ' Hon. J. B. Chrisman, Judge. Action of damages by appellee against the appellant, an oil'company. Plaintiff was employed as a laborer to shovel cotton-seed, in the yard of appellant, in Jackson, Mississippi. While he was working in the yard with other laborers it became necessary to move a loaded. car from the yard, and to have it coupled to another car which was standing on a sidetrack.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrism an, Judge. Action by appellee against the Illinois Central Railroad Co. for false imprisonment. Plea not guilty.

From the circuit court of Warren county. Hon. J. I). G-illand, Judge. Action for personal injuries. Judgment for plaintiff' for $300. Defendant appeals. The opinion sufficiently states the case. Appellant’s duty to stop its train did not arise until the engineer saw that the vehicle would not stop. He had a right to suppose that drivers of all vehicles would be on the lookout for trains. Railroad, Co. v. Mitchell, 52 Miss., 808.

From the circuit court of Warren county. Hon. J. D. Gilland, Judge. Appellant, Welsh, was a switchman in the employ of appellee, the Alabama & Vicksburg Railway Co., his duty being to ride upon the switch-engine, and open and close switches and couple cars. His usual station was on the “ foot-board” of the engine.

From the circuit court of Warren county. Hon. John L>. G-illand, Judge. One Metcalf killed Dwyer, in the town of Cleveland, Miss., on Sunday, July 19J 1891. His preliminary trial before a magistrate was fixed for ten o’clock the next morning.

From the circuit court of Warren county. Hon. J. D. Gtlland, Judge. The case is stated in the opinion. Section 264 of the constitution, was not meant to allow a jury to be made up of incompetent jurors over the challenges of the accused. Its true meaning is that, if a party accepts or fails to object to an incompetent juror, he cannot, after verdict, raise the objection. Such a construction is the natural one, in view of the old law, the mischief and the remedy.

From the circuit court of the second district of Carroll county. Hon. C. H. Campbell, Judge. The town of Vaiden is situated in district five, Carroll county. By the charter of the town, the mayor was made ex officio justice of the peace for the district, and Heggie sued Stone before him on a cause of action which arose outside the corporate limits. The defendant resided outside the town, but within the justice court district.

From the chancery court of Madison county. Hon. H. C. Conn, Chancellor. The appellees exhibited the' bill in this case against the appellant, Atkinson, seeking to establish a trust in certain lands. . They claim through their deceased mother. The lands were purchased prior to 1859 by S. A. H. Greaves, the' father of complainants, who took the title in his own name.

Tim E. Cooper, one of the judges of the supreme court, in a habeas corpus proceeding. The relator, Solomon Shlomberg, was airested on a charge of violating an ordinance of the city of Jackson relating to the sale of second-hand clothing, and was discharged from custody by the judgment appealed from.

From the circuit court of Lauderdale county. IIon. S. H. Terral, Judge.

Erom the circuit court of Noxubee county. Hon. S. H. Terral, Judge. E. C. Dent filed his declaration in the circuit court against M. C. Hambrick and three others, on their joint promissory note. The record contains only the declaration, which is in usual form and unsworn, a copy of the note, a plea of general issue by all the defendants, which is filed, and a subsequent judgment by default, wherein it is recited that the suit is dismissed as to two of the defendants.

Erom the circuit court of Nankin county. Hon. A. G-. Mayers, Judge. This action was brought by E. H. Jones, as agent for his wife, Emma Jones, to recover of W. C. Ellis $129.79, the value of certain agricultural products grown upon her laud, and upon which she claimed, under § 1301, code 1880, a lien to that amount for supplies, which products had been purchased by Ellis. The evidence is sufficiently stated in the opinion. There was a peremptory instruction for plaintiff.

From the chancery court of Sharkey county. IIon. Claude Pintard, Chancellor. Appellee, Watson, filed this bill against N. T. Baggett, chancery clerk, and II. J. Wright, sheriff of Sharkey county, to enjoin an execution issued against one Shelby as principal and appellee as surety, on a bond for costs given during the progress of a chancery suit in which Shelby was complainant.

From the circuit court of Lee county. Hon. Lock E. Houston, Judge. Appellee, Duke, owned and, with his family, resided upon a tract of land containing 160 acres, which was levied on under an execution issued on a judgment in favor of appellant. The land was claimed as exempt, and the sheriff took steps, under § 1251, code 1880, to have the homestead allotted. The freeholders set apart as exempt the west half of the tract, which embraced the dwelling and all other buildings.

From the circuit court of ITolmes county. Hon. O. II. Campbell, Judge. Ejectment by appellant, Moore, against appellee, Bradford, for a lot of land in tlie town of Goodman. Bradford owned ■and occupied the place as bis homestead. In August, 1888, he left Goodman and went to Greenville, Miss., seeking employment. He obtained a position there, being employed by a railroad company at a monthly salary. His wife was left in charge of the home.

<p>From the chancery court of Holmes county.</p> <p>Hon. T. B. Graham, Chancellor.</p> <p>Hnder an execution for costs, issued on the judgment against appellant mentioned in the opinion of the court, the land in controversy ivas sold to the appellee, Moore, who brought ejectment for the same. The bill in this case was filed by appellant to enjoin the prosecution of the action of •ejectment, and for cancellation of the sheriff’s deed. Decree for defendant, from which this appeal is prosecuted. The opinion contains a further statement of the case.</p> <p>The record shows a scheme on Moore’s part to take advantage of the temporary absence of Mrs. Hall and buy in her property at a sacrifice. He had no interest in the judgment, but assumed control of the execution for costs, and bought the property of a neighbor at a grossly inadequate price. His conduct amounted to a fraud, and should be relieved against by a court of equity. Reynolds v. Nye, Freeman’s Ch. H. (Miss.), 462; Freeman on Ex., § 308 et seq.; Horer on Jud. Sales, § 855, and notes.</p> <p>The principle for which we contend is recognized in Hopton v. Swan, 50 Miss., 545; Hall v. Moore, 68 lb., 527.</p> <p>The appellant knew all about the suit in which the execution' for costs issued, and, from the evidence, it is manifest that she knew of the levy upon the property, and that it would be sold. There is no evidence of collusion or fraud in the issuance of the execution and the sale of the property. The fact that it did not sell for a larger sum, was probably the result of fear that the purchaser would get a lawsuit; and then there were questions as to the homestead exemption .</p> <p>It has never been held that mere inadequacy of price will vitiate a judicial sale. On this point, see Freeman on Ex., § 308, which states that inadequacy alone is not- sufficient, unless it is so inordinate as to indicate some mistake or fraud for which the purchaser is responsible, or some misconduct or fraud on the part of the officer conducting the sale. The same authority holds that the mistake or surprise upon which sales are sometimes avoided must be_ traceable to some wrongful act on the part of the purchaser or the execution creditor.</p>

Prom the chancery court of Washington county. Hon. W. K. Trigg, Chancellor. On March 19, 1888, appellee, B. Wolf, purchased a lot of land in the city of Greenville, Mississippi, paid the purchase-money, and took the title in the name of himself and wife, Anna Wolf. Soon afterwards he built a residence thereon, and otherwise improved the lot, paying therefor with his own means.

From the circuit court of Rankin county. Hon. A. G. Mayers, Judge. Louisa Ward, an aged and indigent colored woman, lived on the place of appellee, Watson, for a number of years. Some of her children and grandchildren were laborers on the place, and she lived with them, but was fed from the table of appellee.

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

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Tlie appellee, Frances Yandergrift Shoe Company, recovered judgment before a justice of the peace against one Gary. Afterwards plaintiff suggested that the Acme Lumber Company was indebted to the defendant, and a writ of garnishment was issued, the material parts of which, as well as the return thereon, are set out in the opinion. At the return term judgment was rendered against such garnishee.

From the chancery court of the first district of Hinds-county. Hon. H. 0. Conn, Chancellor. Appeal from a decree sustaining a demurrer to a bill. Appellant, Daniel Sullivan, filed a bill against the Building and Loan Association of Jackson, Miss., seeking relief because of usury, and also praying for an accounting.

From the circuit court of Warren county. Hon. J. H. (Iilland, Judge.

From the circuit court of .Bolivar county. Hon. B. W. Williamson, Judge. Action of unlawful detainer by Simpson against Williams for the possession of certain land in Bolivar county, Mississippi. Simpson was a merchant at Duncan, in said county, and, as such, furnished Williams money and merchandise during the years 1888 and 1889.

<p>Kewakd. Arrest. Fleeing. Code 1880, § 3035.</p> <p>Where one who has killed another is arrested in open day, on a highway, while going into the town of his residence, being near the business part of it, he declaring at the time that he is on the way to surrender, the arrest is not made while he is “fleeing, or attempting to flee,” within the meaning of % 3035, code 1880, and no reward can be allowed therefor.</p>

From the circuit court of Warren county. Hon. J. H. G-illand, Judge. The facts are stated in the opinion. The first instruction asked was correct. It is the one approved in Railway Co. v. Railroad Co., 67 Miss., 399. It was error for the court to burden it with a modification suggesting contributory negligence. It was error to modify the fifth instruction, which defines negligence, by requiring that the circumstances should be known to the defendant.

From the circuit court of Warren county. IIon. J. D. Gilland, Judge. Action by appellee, Mrs. G. A. Bowen, against E. Bonelli, B. C. Bonelli and Frank Bonelli.

Prom the circuit court of Leflore county. Hon. R. W. Williamson, Judge. On September 17, 1891, Plash, Preston & Co., in New Orleans, La., drew a bill of exchange on T. C. Garrott, of Minter City, Miss., payable at the office of Chaffe, Powell & West, in New Orleans, December following. It was accepted by Garrott; and it seems that the appellant, Holmes, indorsed his name on the back thereof, but when, or for what consideration, does not appear.

<p>From the chancery court of Noxubee county.</p> <p>Hon. T. B. Graham, Chancellor.</p> <p>Bill in chancery to foreclose a trust-deed. The facts are-stated in the opinion. It may be added that the bill, while alleging a mistake in the description of the land intended to-be embraced in the trust-deed, contains no prayer for a reformation thereof, or for general relief.</p> <p>The tendency of courts now is to uphold and enforce con'tracts of all kinds according to the intention of the parties.. Liberality has taken the place of strictness. Collins v. Collins, 51 Miss., 311.</p> <p>Even if the alteration were unauthorized or contrary to the original agreement, it would not render the whole mortgage void, since it was not fraudulently made, but in good faith. Collins v. Collins, supra; Vanhorn v. Bell, 79 Am. Dec., 506. The case is governed by McRaven v. Crisler, 53 Miss., 542.</p> <p>This mortgage, having been executed since the code of 1880 removed all disabilities of coverture, it is subject to be corrected so as to evidence the true intent of Mrs. Ham-brick. 'Equity can correct the instrument, and the parties can do that which equity will compel to be done.</p> <p>The correction must be construed as her act, in view of the allegations of the bill. Ross v. Baldwin, 65 Miss., 575.</p> <p>A ratification may be by parol, and may be implied. It is a question of fact. 7 Yer. (Tenn.), 410; 58 111., 19; 19 Johns., 391; 10 Am. Dec., 239; 35 Ark., 147; 123 Mass., 297; 40' Mich., 348; 9 Smed. & M., 375.</p> <p>An alteration, honestly made, to correct a mistake will not avoid an instrument. MeRaven v. Crisler, 53 Miss., 542. See 14 Am. Hep., 766, and cases cited. At most, it could only be void as to the part altered. 51 Miss., 311.</p> <p>Parties who have consented to an alteration, or ratified it, cannot withdraw from such consent or ratification. 33 Ark., 225.</p> <p>The alteration of the mortgage without the consent of Mrs. Hambrick annulled it. Bishop, Contr., § 746; 5 Lawson, R., R. & P., § 2474; 1 Jones, Mortgages, § 94; 7 Am. & Eng. Ene. L., 502, 509; Rverman v. Robb, 52 Miss., 653. McRaven v. Crisler is contrary to these authorities, and should not be followed.</p> <p>The bill does not seek reformation of the trust-deed, nor does it pray for general relief. It must therefore be considered as a mere bill to enforce the trust-deed as altered.</p> <p>It is well settled that the holder of any instrument, who, without consent of the maker, materially alters it to his advantage, cannot enforce it. It is no answer to this to say that courts of equity can reform the instrument. Courts are organized to do such things, and the policy of the law is that only the courts shall do them.</p> <p>The bill does not show that the wife promised to include the homestead, or supposed it was included at the time she executed the trust-deed. The general allegation that all parties intended to include the homestead, is destroyed by the specific averment that the whole transaction was with the husband, and all the wife had to do with it was to execute the papers.</p> <p>The good faith of the party making the alteration does not alter the case. It is a question of public policy, not intent.</p> <p>It cannot be said that appellee ever acquiesced in the alteration, since the bill avers that she never knew of it. McRaven v. Crisler is not decisive of this case. In that case the alteration was of a note, and in a matter not material to the note. See Bridges v. Winters, 42 Miss., 135. The case is entirely different where deeds to land are altered, especially when the homestead is inserted. As to that, a conveyance can have no effect without the signature and acknowledg'ment of the wife.</p> <p>That a material alteration of a note, without the maker’s consent, discharges him, was decided in Oakey v. Wilcox, 3 How., 330. This case has never been overruled. Bridges v. Winters and McRaven v. Crisler are not in point. They were cases of simple notes, and the alterations were not jn essential matters. So of the case of Collins v. Collins. The doctrine of these cases cannot extend to conveyances of land, where the alteration is material.</p> <p>The wife is not bound by the unauthorized act of the husband in making the alteration. 1 Jones on Mort., 94; 5 Lans., 365.</p> <p>This is not a bill for reformation, but a suit on the altered instrument. In any view of the case, the mortgage is void as to the homestead. That can be transmitted only in the manner provided by the statute.</p> <p>Argued orally by J. E. Rives, for appellant, and A. C. Bogle and T. W. Brame, for appellee.</p>

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Appellee, Henry, brought this action December 9, 1891, against J. H. Odeneal and Anna M. Odeneal, claiming $1,-331.50 damages for the non-performance of an alleged contract of hiring.

From the chancery court of the first district of Hinds county. Hon. II. C. Conn, Chancellor. A tort-feasor cannot invoke the jurisdiction of equity to enjoin suits begun at law for damages for the trespass growing out of a single past act, and compel the injured persons to join in one suit in equity, upon the sole ground of a common question of law and fact being involved.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The opinion states the facts. The features of the contract indicating a partnership are as follows: 1. Sharing net profits. This is prima facie a test of a partnership. No intent to create a mere agency appears on the face of the agreement. 1 Bindley on Partnership, 34; 1 Bates on Partnership, § 15 ; Wood v. Thompson, 22 How. (TJ.

<p>From the circuit court of Yazoo county.</p> <p>JIon. J. B. Ci-irisman, Judge.</p> <p>Appellee, Jones, owned a plantation in Holmes county, Mississippi. On January 1, 1890, he entered into a partnership agreement, in writing, with one R. G-. Worsham, by which they were to cultivate the plantation during that year on joint account. There was a steam-gin and saw-mill on the place, which were to be operated under the agreement. Worsham was to give his personal attention to the business. Jones lived at Kosciusko, in another county. The partnership affairs were conducted under the supervision of Worsham until March 4, 1890, when the agreement was changed,the partnership was dissolved, and Worsham became the tenant of Jones, executing a written lease, by which he agreed to pay $2,500 for the rent of the plantation and the use of the mules thereon. In December, 1890, Worsham delivered to appellants,- Warren & Montgomery Bros., merchants in Yazoo City, eleven bales of cotton, raised by him on the plantation of appellee that year. The cotton was sold by appellants, and the proceeds accounted for and paid over to Worsham. Appellants knew of the partnership existing between Jones and Worsham, and their testimony was to the effect that, when they received the cotton from Worsham, they supposed he was still a partner, never having heard of the change from a partnership to a tenancy. In' accordance with their custom, they inquired of Worsham, at the time, as to his right to sell the cotton, and he informed them that it was all right; that he had to sell the cotton in order to raise money to finish marketing the crop and winding up the business.</p> <p>Worsham having failed to pay the rent in full, this action was brought by Jones against appellants for the value of the cotton so received by them. Defendants pleaded hot guilty. On the trial the above facts were shown. It did- not appear that any notice was given of the dissolution of the partnership, and the written lease was not recorded. There was some evidence tending to show that one of the defendants admitted that he knew that Worsham was the tenant of plaintiff, but this was contradicted. Defendants introduced testimony going to show that Worsham sold the cotton by consent of the landlord, but this was disputed, and there was a conflict of evidence on the point. As to this the court instructed the jury, at the instance of defendants, that the burden of proof was on plaintiff to show that the cotton was sold without his consent, and that if he consented to the sale he could not recover. On motion of plaintiff, the •court excluded from evidence the contract of partnership, to which action of the court the defendants excepted. Defendants’ third, fourth, fifth and sixth instructions, referred to in the opinion, are as follows :</p> <p>“ 3. The court instructs the jufy that, if they believe from •the evidence that Worsham went on Jones’ place in the beginning of the year 1890 as a partner of Jones — not as a tenant — and that the partnership continued until the fourth day of March, 1890, and that during the existence of the partnership defendants were informed by Worsham, one of the partners, that he was occupying the land as a partner, the jury must find for the defendant, unless it appears from the evidence that defendants knew the partnership had been dissolved, and that the relationship of landlord and tenant existed, or that defendants had such notice of the dissolution of the partnership and the creation of the tenancy as would justify the jury in imputing bad faith to them in selling the cotton as factors.</p> <p>“ 4. The court instructs the jury that, if they believe from the evidence that Worsham entered into the possession of the Kearney place as a partner of Jones, and that, during the continuance of the partnership, Worsham, a partner, told defendants that he was on the place as a partner — not as a tenant — then the knowledge by the defendants that Worsham was on and cultivating the place, is not such knowledge or notice as would put them on inquiry as to whether or not Worsham was a tenant, unless they believe from the evidence.that defendants had, before the delivery of the cotton to them, and before its sale by them, knowledge or notice of the change of the relationship of Jones and Worsham.</p> <p>5. The court instructs the jury that, if they believe from the evidence that the defendants knew that Worsham was occupying and cultivating the plantation of plaintiff during the year 1890, but were ignorant that the relationship of landlord and tenant existed, then such knowledge was not sufficient to put them on notice that Worsham was Jones’ tenant.</p> <p>“ 6. The court instructs the jury that, even if they believe from the evidence that defendants knew that Worsham was the tenant of Jones at the time of selling the cotton, yet, if they believe from the evidence that, on inquiry made by defendants, Worsham stated to them that there was no lien on the cotton, and he had a right to dispose of it, the law is for the defendants, and the jury will so find.”</p> <p>Verdict and judgment for plaintiff. Motion for new trial overruled. Defendants appeal. The opinion contains a further statement of the case.</p> <p>Filed a lengthy brief as to the questions decided by the court, making the following points:</p> <p>1. Defendants- knew of the existence of the partnership, and, having received no notice of its dissolution, they bad the right to assume that it still existed, and that Worsham, as a partner, had the right to dispose of the cotton. Oh this point see 17 Am. & Eng. Ene. L., 1117, 1118, and cases cited; 5 B. & A., 157.</p> <p>As to former dealers, actual notice of dissolution must be given; as to others, general notice. Polk v. Oliver, 56 Miss., 566; 17 Am. & Eng. Ene. L., 1122-1127. See also Boyd v. Picketts, 60 Miss., 62; 61 lb., 359. Here no notice was given, and no change was made in the conduct of the business. And the transaction with Worsham was within the scope of the business. 'It was, therefore, error to refuse defendants’’ third instruction.</p> <p>It was also error to refuse the fourth instruction. Knowledge that Worsham was on the place was not notice that he was there as tenant instead of partner. Claiborne v. Holmes, 51 Miss., 146. When awendor holds possession by a tenant, and the vendee, after the sale, retains the same tenant, the title is transferred, but there is no change of possession sufficient to arrest notice or put a creditor or purchaser on inquiryLoughridge v. Bowland, 52 Miss., 546. Bacon v. Howell, 60 Miss., 362, does not militate against our position, but rather supports it.</p> <p>2. In Eason v. Johnson, 69 Miss., 371, it was held that the right of the landlord to recover is not affected by the want of knowledge on the part of the purchaser that the “rent is due and unpaid.” This is far from deciding that the landlord may recover of one who has purchased from the tenant without knowing, that he was tenant or having knowledge of some fact that would put him on inquiry. The court did not overrule Bunn v. Kelly, 57 Miss., 825, and Cohn v. Smith, 64 lb., 816. We think the rule laid down in the last mentioned case is right. Saying in Eason v. Johnson that the “ rule of caveat emptor applies to all who purchase from a tenant,” etc.,, simply means, as we construe it, that the1 rule applies to all buying from one whom the purchaser knows to be a tenant, or about whom he has such knowledge -as ought to lead to-inquiry.</p> <p>3. The court erred in defendants’ first instruction, and in giving the third for plaintiff, the effect of which was to inform the jury that, although Jones gave Worsham permission to sell enough cotton to pay for gathering the crop, yet if' prior to the sale to defendants he had sold more than enough for that purpose, the sale to defendants was unauthorized. This was misleading, and, besides, the consent to sell having been once given, ought to have been withdrawn. Cohn v. Smith, 64 Miss., 816. If Worsham was selling more than sufficient to complete the crop, it was incumbent on the landlord to withdraw his consent, and not allow the tenant to damage innocent parties.</p> <p>4. Aside from the above questions of law, the verdict is clearly contrary to the law and evidence.</p> <p>The burden of proof rested on plaintiff to show notice of dissolution of the partnership. 17 Am. & Eng. Ene. L., 1118. Defendants, having acquired knowledge of the fact of partnership and who were the partners, were entitled to notice of the dissolution. ■ There was no notice, and the change to a tenancy was evidenced' only by a 'written lease, known only to the parties. On this point, see Boyd v. Ricketts, 60 Miss., 62. It makes no difference that this was a non-trading partnership. The dealing with defendants was within the scope of the business. Lynch v. Thompson, 61 Miss., 354. But the court excluded the partnership agreement from evidence, and, by its instructions, in effect, refused to permit the jury to consider the ease with reference, to the partnership idea. The case of Bacon v. Hoioell, 60 Miss., 362, has no application. There the tenant made a misstatement, and this should not have been relied on. Here Worsham, the partner, made a true statement, whereby appellants obtained knowledge that the partnership existed. As to them, there was no dissolution.</p> <p>This case was tried in ignorance of the case of Bason v. Johnson, not then reported. But that case simply holds that want of knowledge “that the rent is clue and.impaid,” will not defeat the landlord. This is a different case entirely. But, if we are mistaken as to this, the extraordinary right of the landlord should be denied him wherever he has so conducted himself as to induce strangers to believe that his relationship to the occupant of the land is not that of landlord, but something else.</p> <p>Those who deal with an individual jointly interested with another, in planting operations, must, at their peril, inform themselves as to the relations between the parties. 45 Miss., 508; 48 lb., 300; 50 lb., 358.; Morgan y. Fierce, 59 lb., 210; Bacon v. Howell, 60 Miss., 362.</p> <p>It clearly appears that appellants dealt with Worsham only as an individual, and not as a member of any firm. Therefore they were in no event entitled to notice of the change from a partnership to a tenancy, and the court acted properly on the instructions as to this. Worsham did hot sell the cotton as partnership property, but as his own, claiming' that Jones had given his consent. On this point, see Story on Partnership, § 134.</p> <p>No notice whatever of the tenancy is necessary. A purchaser of agricultural products from the tenant, takes them subject to the claim of the landlord, Caveat emptor is the rule. Eason v. Johnson, 69 Miss., 371.</p> <p>The issue as to whether Jones consented to the sale of the cotton was fairly submitted to the jury, and appellants are concluded by the verdict.</p>

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. On October 16,1891, appellant, Griggs, sued out an attachment against the appellee before a justice of the peace of district 3, Noxubee county, for $165. The defendant was a non-resident of the state, and the attachment was sued out on that ground. It was made returnable before said justice, and was levied on a piano, the property of defendant, in district 4, no property being found.in district 3.

From the chancery court of Sunflower county. Hon. W. H. Trigg, Chancellor. The appellees, children and heirs of Nancy E. Johnson, filed this bill against Q-. W. Faison, seeking to vacate certain sales, under which the latter had acquired title to and possession of lands belonging to their said mother, and to have him declared trustee in-possession for them.

From the chancery court of Noxubee county. Hon. T. B. G-raham, Chancellor. In 1889 E. Y. Davis and W. E. Whitten were engaged in mercantile business at Stone, Ala., under the firm name of E. Y. Davis & Co., and complainants in this case, wholesale merchants, had dealings with the firm. Davis was the active manager of the business, but it was known to complainants that Whitten was a partner.

From the circuit court of Lauderdale county. Hon. S. II. Terral, Judge. Appellants,Yale & Bowling, sued out an attachment against L. Solomon & Co., which was levied on certain goods. Joseph Baum & Co. claimed to have purchased the goods, and obtained an injunction restraining the plaintiffs from subjecting them to their attachment.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor. In April, 1889, S. G. Colemán, a citizen of Alabama, resident in Mobile, died in that state intestate and unmarried. At the time of his death he owned a large landed estate, consisting of plantations in Alabama apd Mississippi, and one'plantation lying partly in Noxubee county, Mississippi and partly in Pickens county, Alabama.

From the chancery court of the first district of Hinds county. Hon. H. C. Conn, Chancellor. This is a bill exhibited in behalf of Donna M. Rudolph and others, minors, against their former guardians, and the sureties on two distinct sets of guardians’ bonds, to recover a principal sum of about $9,000, which has been lost as the result of an unauthorized loan of their funds.

Prom the circuit court of the-first district of Hinds county. Hon. J. B. Chrisman, Judge. Appellant, a druggist in Hinds county, has been convicted upon an indictment charging an unlawful sale of vinous and spirituous liquors — namely, alcohol. The “local option” law of 1886 not being in force in Hinds county, the legality of the sale is referable to the general law contained in chapter 39, code 1880.

From the circuit court of Lee county. Hon. Look E. Houston, Judge. Bird Ward has been convicted under chapter 56, laws 1890, of knowingly enticing away a laborer under contract to work for another. The evidence showed that the laborer was what is usually known as a “cropper” — that is, he worked land of another under a contract that he was to receive a certain share of the crop raised. The ease is further stated in the opinion.

J. D. G-illand, Circuit Judge, on habeas corpus. The opinion states the case. Since the record affirmatively shows that the jury consisted of only eleven men, the relator was entitled, under the constitution, to his discharge. The writ of habeas corpus cannot be made to serve the purpose of a writ of error. Freeman on Judgments, 620.

From the circuit court of Attala county. Hon. C. H. Campbelu, Judge. Appellant has been convicted, under code 1880, § 2985, of carrying a concealed weapon. There was evidence tending to show that, shortly before the occasion when the weapon was being carried, persons had warned the accused that a neighbor had threatened to kill him “ on sight,” unless he denied making certain statements, which the accused, as a witness, admitted he had made.

From the circuit court of the second district of Hinds county. Hon. J. B. Chrisman, Judge. In view of the opinion, it is necessary to state the case in only one aspect. Appellant, Sherman Lloycl, and another were jointly indicted for shooting, with intent to kill and murder, oüe Green Lloyd. A severance was had, and the defense made by appellant was an alibi. Green Lloyd, the wounded man, was the only eye-witness of the shooting.

From tbe circuit court of Lauderdale county. IIon. S. H. Terral, Judge.

Motion in the supreme court. In a suit brought by Hiern, the appellee, against Quarles and others in the chancery court of Harrison county, a final-decree was rendered in favor of Hiern. After entry of the decree, the original papers were turned over to Hiern, the successful complainant, at his request, for examination.

Prom the circuit court of the first district of Carroll county. Hon. C. H. Campbell, Judge. This is an action by P. Money to recover of C. R. Peavy and others damages for breach of an alleged contract to build a partition wall.

From the chancery court of Lee county. Hon. Laxter McFarland, Chancellor. Appellants, W. C. Pounds and M. L. Pounds, his wife, ■filed this bill against appellees to cancel a deed of trust, by which W. C. Pounds conveyed the land in controversy to one Gray to secure a debt due to appellees, and also to cancel the conveyance by said trustee to them.

<p>1. Railroads. Killing stock. Negligence. Instruction.</p> <p>In an action against a railroad company for killing a horse on its track, where there is evidence tending to show negligence on the part of the engineer, an instruction is erroneous which declares disjunctively that defendant is not liable if the employes used reasonable care to avoid the injury, or, after seeing the animal, it was impossible to stop the train in time to avoid the injury. The impossibility of stopping after seeing the danger could not relieve from previous negligence, if such there was.</p> <p>2. Erroneous Instruction. Modification of; who may complain.</p> <p>One who has asked an erroneous instruction cannot assign for error its modification, for, if not content with it as modified, he should have declined to read it to the' jury.</p>

From the chancery court of Yazoo county. Hon. H. C. Conn, Chancellor. The case is stated in the opinion.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. Pearce, the appellant, filed this bill June 1, 1891, seeking confirmation of certain tax-titles. The bill sets out a number of purchases from the state of distinct tracts of lands, and, as to a part of the lands so purchased, he obtained a decree confirming his title. But, as to certain other tracts, the bill was dismissed, and complainant appeals.

From the circuit court of Monroe county. Hon. Lock E. Houston, Judge. This is an action of replevin, begun in the justice court, to recover a mare, two colts and several head of cattle. The mare and colts are admitted to be the offspring of a mare owned, in 1882, by one Bransford. Iris Walker claims to have purchased this mare from Bransford in 1883, the trade being verbal and On a credit.

From the chancery court of Panola county. I-Ion. B. T. Kimbrough, Chancellor. Appeal from decree overruling a demurrer. Appellee, Fannie E. Neal, filed her bill against appellant, Mary V. Duval, alleging that the latter had written a book, entitled “History of Mississippi,” and had the same copyrighted; but, being unable to pay for publishing the book and introducing it-to the public, sought 'and obtained from complainant advances for that purpose.

From the circuit court of Tunica county. Hon. R. W. Williamson, Judge. This was an action begun in the .justice court for the partition of certain cotton under § 2580, code 1880. The petition alleges that the petitioner, R. A. Stone, trustee, and one Bennett are owners each of an undivided half-interest in the cotton; that appellants, Porter & McRae, claim to own the half-interest of Bennett.

From the circuit court of Coahoma county. Hon. E. W. Williamson, Judge. Appellant rented land to one Hopson-, taking his note for the agreed rent. She also sold him two mules with which to make a crop, taking a separate note for their price, and reciting in it that she retained a lien on the mules and crop until the note should be paid. Appellee, Durham, sub-rented a part of the land from Hopson.

From the circuit court of Sharkey county. Hon. J. H. Gtlland, Judge.

<p>From the circuit cou'rt of Warren county.</p> <p>Hon. J. L>. Gtlland, Judge.</p> <p>Information in the nature of a quo warranto .by the state, on the relation of the district attorney of the ninth district of Mississippi, against appellee', W. S. Lovell. The information alleges that at the general election held in November, 1891, one Convillion was elected justice of the peace for the third district of Warren county for a term of four years, commencing the first Tuesday after the first Monday of January, 1892; that he failed to qualify, and that no action was taken to fill the vacancy until the 6th day of May, 1892, when the board of supervisors declared.a vacancy to exist, and ordered an election to fill it, but failed to name the day upon which the election was to be held; that the election commissioners of the county, erroneously believing that they had the power to name the day, fixed the election for May 25th, 1892, on which day an election was held, when appellee, W. S. Lovell, was by them declared elected, but, before a certificate of election was issued, the commissioners were enjoined from issuing it; -that the returns of said election were, however, forwarded to the secretaiy of state, and that the governor, through mistake of law, caused a commission to issue to said Lovell, who, thereupon, qualified as justice of the peace; that, thereupon, the proceedings in this case were instituted against said Lovell before the circuit judge in vacation, July 1st, 1892-The information further shows that wThile said quo warranto proceedings were pending, the governor, without waiting for a decision by the court as to.the validity of said election, through error of law, appointed the said Lovell justice of the peace for the whole term ending January, 1896, and issued a commission, accordingly. This appointment the relator alleges was without authority, wherefore it was prayed that the defendant should be debarred of exercising the functions of said office.</p> <p>A demurrer to the information was sustained, and the ease dismissed. Relator appeals.</p> <p>The governor had no power to appoint appellee, there being no vacancy caused by removal from office.</p> <p>The board of supervisors having ordered an election to fill the vacancy of the unexpired term, the governor could not interfere and fill the office by appointment, except for a temporary officer. The form of an election having been gone through with, and a.commission having issued to Lovell, the governor had no power to declare this de facto officer an usurper in advance of a decision"by the courts. He could not have issued a valid commission to an appointee for the unexpired term, it being more than two years.</p> <p>The words “ remove and appoint,” in § 139 of the constitution, must be taken together, and the governor can only appoint in such cases when he has removed the officer.</p> <p>The authority of the governor, under § 103 of the constitution, is limited to making a temporary appointment, the officer to hold until an election. He cannot appoint officers made elective by the constitution, except tt> fill a temporary vacancy pending an election, unless it be in a case where he has removed an officer.</p> <p>Section 3686, code 1892, is unconstitutional, being framed upon a too liberal construction of § 139 of the constitution. But, if it is not unconstitutional, the governor could not issue a commission in this instance, because there was no vacancy existing at the time. There had been the form of an election, and the commission had issued,- and Lovell had qualified, and was performing the duties of the office. It was then for a court of competent jurisdiction to decide whether or not- the office was vacant. The constitution wisely divorces the judicial functions from those of the executive. So long as there was an officer, or a .person acting as such, there was no vacancy, and the governor had no power to declare one. Brady v. West, 50 Miss., 68; 9 Paige Ch. (N. Y.), 507; 20 Cal., 503; 37 lb., 614; 49 lb., 407; 2 Md., 341.</p> <p>If the view of the law as held by the circuit court be correct, the governor can take a case out of the hands of the court, and decide the legality of an election. A corrupt governor could install himself, and, with the power to name the officers of election and to decide what elections are legal, he would be furnished with a machine to perpetuate infamy. From the present executive there is nothing to fear, but it would be dangerous to hold that the governor has such a power.</p> <p>The last commission was void, and should be so declared. On this point, see Cooley on Const. Lim.,.779.</p> <p>The people, by acquiescence, could have waived the irregularity, and would be held to have waived it. in the absence of the proceeding instituted by the state. State v. Buff, 29 Pac. P., 999.</p> <p>1. The order providing for a special election, at which appellee was elected, was a nullity, because it failed to fix a day for the election. The office remained vacant in spite of the fact that Lovell had entered therein, and, but for § 3686, code 1892, it would have been the duty of the board of supervisors to order an election to fill it.</p> <p>There was occasion for the judicial declaration of a vacancy. The illegal election left the vacancy as before.</p> <p>The error of opposite counsel is in supposing that the de facto principle, which applies only in favor of third persons, may preclude a vacancy in an office.</p> <p>It is a pure fancy that, in superseding a former void commission, the executive invaded the judicial department. Had a person other than Lovell been appointed, the second commission would have given the holder a right to the office.</p> <p>The state did not acquiesce in a de facto claim innocently-set up by Lovell, but instituted proceedings to oust.him. There was nothing to prevent him from anticipating a judgment and surrendering his void claim, which he did by qualifying under the second commission.</p> <p>There is no force in the suggestion that the governor could usurp the functions of the court should he assume to fill- the vacancy when none existed. His action would be annulled, and would prejudice no one.</p> <p>2. Section 3686, code 1892, is fully authorized by § 103 of the constitution. There is nothing in the constitution requiring that vacancies, in cases like this, shall be filled by a special election. The mode of filling the vacancy is committed to the legislature, which may pyovide for election or appointment to fill vacancies. In cases of emergency, the constitution gives the governor power to make provisional appointments, and, in cases of special election, provides for the appointee to hold until his successor is qualified, after a general election.</p> <p>If the appointment in this case should only have been temporary, to last until an election, still the court could not have ousted defendant before such election. The judgment appealed from is right, whether we rely„upon § 103 of the constitution or upon § 3686, code 1892.</p>

From the chancery court of Quitman county. Hon. W. B. Trigg, Chancellor. On March 19, 1881, J. M. Phipps, being the owner of certain land in the 'new county of Quitman, executed to the board of supervisors a deed to a part of the same, upon which was to be located the county site.

From the chancery court of Monroe county. Wiley H. Clieton, Esq., a member of the bar, presided as special chancellor by agreement of the parties. Hon. Baxter McFarland, chancellor, having been of counsel, was disqualified.' On September 12, 1882, under a decree in a partition proceeding in the chancery court of Monroe county, certain land, in which the appellants were tenants in common, was sold for a division of proceeds.

From the circuit court of Monroe county. Hon. Lock E. Houston, Judge. Action of damages against appellant, by A. C. Cantrell, for the use of D. E. Cantrell, for the value of a mare alleged to have been killed on defendant’s track, by the negligence of its employes. , Defendant prevailed, but, on appeal, the judgment was reversed and the cause remanded for a new trial. See Cantrell v. Railroad Co., 69 Miss.,.435.

<p>From the circuit court of Lafayette county.</p> <p>Hon. James T. Fant, Judge.</p> <p>Action of damages by P. F. Cathey, administrator of the estate of his deceased minor son, J. W. Cathey, against the Illinois Central Railroad Company. ■ The declaration' alleges that the “ said defendant, while operating its freight-cars by the powerful and dangerous agency of steam, within the limits of the city of Canton, Mississippi, a city duly incorporated, wilfully and recklessly, with gross and wanton negligence, ran its cars over and killed said J. W. Cathey.” There was no other allegation as to negligence.</p> <p>The material facts, as shown by the testimony, are as follows: Young Cathey was a minor. He was employed by the defendant, and his duties were those of night switchman in the Canton yard, with which he was familiar. He helped to make up the trains there. About the twentieth of May, 1890, at night, a freight-train was being made up in the yard. Cathey was directed to make the coupling of a coal-ear. This he did; but, iii doing so, he either fell or was knocked down and injured. The wheels passed over his right leg and left foot. From the injuries received, he died the next morning. No one was near enough to be able to say just how the accident occurred or what caused it. Some of the witnesses testified to having seen him fall, and others heard him cry out; the lantern he had in his hand was seen to go up and then fall suddenly.' "When he was reached he was lying on his back, with his body outside the track and his legs under the car. He stated to the attending physician that “he fell down between the ears.” The injury occurred on a switch or side-track, and plaintiff introduced evidence of various defects about the track, namely: That the rails where the deceased fell were laminated so-that iron splinters stuck out from them the size and length of a man’s finger, and strong enough to trip a man ; that the-ties were rotten, and that there was a depression in the track, which caused it to give way several inches as the train passed over; that there were lumps of coal scattered about on the-ground between the rails, some of them “ as large as a man’s-two fists,” and over which one would be likely to stumble. There was also testimony tending to show there were blood spots near the rail; and it was shown that the left leg of the pants which deceased- had on was freshly snagged and torn near the bottom, and on the inside of, and parallel with, the rail at this point there was a man’s track. It was shown that one always goes in sidewise to couple cars. There was-also evidence tending to show that, before the injury, the attention of the yard-master and road-master of defendant had been called to the defective and dangerous condition of the track at that place. After the injury, the rail at the-place where deceased was run over was taken up and replaced with another. The rail which was taken up was not produced at the trial. There were some conflicts in the testimony; but, in view of the opinion of the court, it is not deemed necessary to fepecify the same, or to set out the evidence more fully.</p> <p>Plaintiff’s second instruction, alluded to in the opinion, is as follows:</p> <p>“ The court charges the jury that, if they believe from the evidence that the road-bed and rail of defendant company at the point of injury was dangerous, and out of repair, and the railroad company was guilty of gross negligence in permitting its road-bed, rails and track to be out of repair, and »that the condition of the rails was dangerous at the point of injury, and that these facts were brought to the notice of the railroad company before the accident, and that the company failed to repair its rails and road-bed, and that the death of Cathey was the result of such gross negligence of the company in not repairing its rail and track, and that Cathey was not guilty of contributory negligence, then the jury should find for the plaintiff, and assess his damages at such amount as they may believe from the evidence he is entitled to.”</p> <p>The jury found a verdict in favor of plaintiff for $9,000, and judgment was entered thereon. Motion for new trial ovei’ruled. ' Defendant appeals. The opinion contains a further statement of the case.</p> <p>1. Discussed the facts at length, contending that there was no proof that the injury complained of was caused by defendant’s negligence; that the theory of the deceased being injured by reason of the causes alluded to in the evidence, was based upon pure conjecture, and that, as there was no proof of a causal relation between the injury and the alleged negligence, the verdict was wholly unsupported, and there should have been a peremptory instruction to find for the defendant, citing Short v. Railroad, Go., 69 Miss., 848.</p> <p>2. Granting, for the purpose of argument, that the deceased was killed by reason of defendant’s negligence in respect to the things mentioned in the testimony, still it was a proper cause for a peremptory instruction. It was. the duty of the yard-master and section-boss to keep the track in order, and these parties were fellow-servants with the deceased. Lagrpne v. Railroad Go., 67 Miss., 592. The aecident occurred'in May, 1890, hence, the provisions of the new constitution as to this have no application.</p> <p>. 3. Plaintiff’s second instruction should not have been given. It lays down a rule of recovery which is at variance with the pleadings. The declaration puts the case on wilful and wanton negligence in running cars, while the evidence and this instruction put it wholly on a different ground— that is, in not keeping the track in order. On this point, see authorities referred to in George’s Miss. Nig., p. 423, § 54. The instruction is also erroneous in charging that, if the jury found for plaintiff, they “might assess his damages at such amount as they may believe from the evidence he is entitled to.” The court should liave fixed the elements of damages to be considered. This was not an action under § 1510 of the code, for the death of the deceased ; and his death is not an element in the computation. Railroad Co. v. Phillips, 64 Miss., 693.</p> <p>Filed a lengthy brief, contending substantially as follows:</p> <p>1. The conclusion reached by the jury, and properly, from the evidence, was that Cathey went in sidewise to make the coupling, and made it, turned, was caught by the spurs, and fell, and, in falling, threw himself backwards on the ground; that the spurs caught the left leg of his pants near the bottom, and, holding, threw him; or, else, that he stumbled over coal-shown to have been there. The first proposition is the more probable one, and it is manifestly what occurred. Is it possible that the finding of the jury on this pure, unmixed question of fact is to be disturbed by the court?</p> <p>2. The case is entirely different from Short v. Railroad Co., 69 Miss. There it was shown that the track was in good condition ; here the track was out of repair, and dangerous in the extreme. Counsel’s whole argument means that “ causal relation” can never be made out by circumstantial evidence.</p> <p>3. It is an astounding proposition that this case is governed by tbe decision in Lagrone v. Railroad Go., 67 Miss., 592. This is a case of defective machinery and defective road-bed, and is within the exception of the fellow-servant doctrine.</p> <p>4. The objection to the second instruction is hardly serious. There is no countenance for the proposition that the damages claimed were for the death and punitory.</p> <p>5. Other cases decided by this court hold that the company is liable in a case like this, where the track is unsafe and the rails and cross-ties worn out. It was so held in Hughes’ Case, and in the ease of McMaster v. Railroad Go., 65 Miss., 264. And in the recent unreported case of the I. C. R. R. Go. v. Ruffin, the fellow-servant doctrine was held no defense. As to the fellow-seiwant doctrine, I refer the court to the accurate language of Judge Dillon, in 24 Am. L. Review, p. 190, quoted in 11 Lawyers’ An. Rep., 76.</p> <p>The true inquiry is, was the accident one of a normal and natural risk in the ordinary course of business? If the railroad company will have an unsafe track, splintered and worn out rails and cross-ties, it is most emphatically not a normal or natural risk.</p>

From the circuit court of Webstar county. Hon. C. H. Campbell, Judge. In May, 1891, Mike Crawley, a young unmarried man, was struck and killed by a locomotive attached to one of appellee’s passenger-trains, and this action was instituted by Mary Crawley, his mother, to recover for the loss of his services.

From the circuit court of Pike county. Hon. W. P. Cassedy, Judge. The opinion sufficiently states the facts. The suit in Iowa having been first commenced, and having jurisdiction, takes precedence. The exemption laws do not concern us in this case. Appellant is sued as garnishee of plaintiff’ in another pending suit, and that suit should have the same effect as if pending here.

Rrom the circuit court of Tunica comity. IIon. R. W. Williamson, Judge. Action by appellees to recover of the appellant company the value of a mule killed by its running train. The testimony of the witnesses for the plaintiff is stated in the opinion. It may he added that they testified that the tracks of the mule showed that it rau about forty yards down the track before being overtaken.

Prom the circuit court of the second district, of Panola, county. IIon. Eusene Johnson, Judge. The record shows that appellant, Andrew Gilchrist, is a non-resident of this state, engaged in banking. He owns a. large body of wild land in this state, and is represented here by one P. G. Nelson, who resides at Jackson, Miss., who is his agent to look after said land, and by his attorneys, Nu-gent & McWillie, who also reside at Jackson, Miss.

From the chancery court of Monroe county. PIon. Baxter McFarland, Chancellor. The will of W. C. Blackburn, who died in 1859, contained the following clauses: “ 2.

From the circuit court of Warren county. J. M. Gibson, Esq., a member of the bar, was selected by lot,' and presided as special judge in this case. The Hon. J. D. Gilland, Judge, having been of counsel, was disqualified. Action of damages by appellee against appellant, arising from defendants preventing plaintiff carrying out a contract to do certain work.

Prom the circuit court of Harrison county. Hon. S. H. Terral, Judge. Appellee, Mrs. Shantz, and one Collins entered into a written contract, by which the latter agreed to build for her a house for $1,000, she agreeing to make payments on installments as the work progressed, the last payment of $250 to be made when the building was completed.

<p>1. Partition. Adverse claim. Jurisdiction. Code 1880, § 2576.</p> <p>Under § 2576, code 1880, the chancery court has jurisdiction in a partition suit to adjudicate all conflicting claims or controversies between those" properly joined as parties. This is true, even where a defendant, alleged to be a co-tenant, denies that he is such, and asserts an adverse title in himself. Nugent v. Powell, 63 Miss., 99.</p> <p>2. Adverse Possession. Husband and wife. Joint occwpancy. Title.</p> <p>Where a husband has conveyed land to his wife, although confessedly in fraud of his creditors, and they continue, as before, to occupy it together as their home, their joint possession will be referred to her title, and, after her death, he cannot claim, as against her heirs, that his possession was adverse to her.</p>

Prom tlie chanceiy court of Jones county. Hon. W. T. Houston, Chancellor. One Yawn was the owner of 160 acres of land, which he occupied, with his wife, as their homestead, and, while so occupying it, he conveyed, by deed, to appellant, McKenzie, all the timber of a designated size growing on the land, no time being fixed for its removal. The deed was acknowledged and placed upon record.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Searles, a broker in Vicksburg, Miss., sued Wilkinson, a broker in Jackson, Miss., for $295, the price of a car-load of meal.sold April 28, 1892. The defendant admitted the correctness of the claim, but pleaded, by way of offset, that plaintiff was indebted to him in the sum of $246.12, on account of former transactions between the parties.

From the circuit court of the first district of Yalobusha county. Hon. Eugene Johnson, Judge.

<p>Prom the circuit court of Warren county.</p> <p>I-Ion. J. D. Gtlland, Judge.</p> <p>On November 21, 1892, IJettie Jones made affidavit before a justice of the peace of Warren county that appellant, Peter Jones, was a vagrant, having abandoned his wife and children without just cause, leaving them without support, and in danger of becoming a public charge. On the same day the justice of the peace entered a judgment reciting a hearing on all the evidence in the case, and adjudging that the defendant enter into a bond in the penalty of $200 “ for his good behavior for twelve months and treatment of his wife, and to be committed to the county jail ten days, unless he immediately give bond and pay all costs.”</p> <p>It seems that defendant took an appeal to the circuit court, but the record contains no petition or bond for appeal. It recites that the circuit court, on motion of the district attorney, made a motion to dismiss the appeal for want of jurisdiction, and that the court, being of opinion that no appeal could be prosecuted from the judgment of the justice court in vagrancy proceedings for the first offense, sustained the motion and dismissed the appeal. To this ruling an exception was taken, and the defendant appealed.</p> <p>Section 1323, code 1892, provides for the arrest of one suspected of being a vagrant, and, on satisfactory evidence, the justice of the peace before whom he is to be taken is required to commit him to jail for ten days, unless he shall give bond in the sum of $250, conditioned for his good behavior for twelve months. Section 1324 makes it the duty of the justice of the peace, on subsequent violation of the law in relation to vagrants by such person, to re-arrest and try the offender, who,, on violation, is to be committed to jail for twenty days. Bond is not allowed for the second offense.</p> <p>Section 82, code 1892, provides for appeals from the justice court in all civil cases, and § 86 provides for appeals in criminal cases. Clearly the defendant had the right to appeal to the circuit court. "We need not cite authorities in support of this right, for the statute is explicit. If the legislature had intended to deny an appeal in vagrancy cases, it would have said so. "What difference there could be between the first and second offense, so far as the right to appeal is concerned, we cannot see.</p> <p>1. Counsel for appellant relies upon the provisions of § 86, code 1892, as giving the right to appeal, but the case involves the construction of this section, together with §§ 1323,1324. Section 1323 of the code must have been treated as providing not so much for a conviction of the criminal offense as for the bond for good behavior, and the imprisonment feature, not as a punishment but as the means of enforcing compliance with the requirement for the bond. Section 1324, relating to the second offense, provides unconditionally for punishment by imprisonment. From this, the construction arises that in such case an appeal lies under the general terms of § 86. '</p> <p>The case seems to bear an analogy to, if it is not identically the case of, one being put under a peace-bond under § 1479 of the code, which expressly allows an appeal, while in the case of this special good-behavior bond no appeal is expressly provided for. In the enactment of § 1479 it must have been considered that appeals from judgments requiring peace-bonds were not given by the genei’al law, § 86, and hence the necessity of a special provision as to an appeal. Under § 1324 there would be a technical conviction, from which- an appeal could be prosecuted.</p> <p>The question is res nova, and upon these suggestions it is respectfully submitted to the judgment of the court.</p> <p>• 2. The -appeal to the circuit court was imperfect in this, that the record shows no appeal-bond from the judgment of the justice court. Section 86 of the code requires an appeal-bond, and § 88 requires that it shall be filed in the circuit court.</p>

From the circuit court of the second district of Panola county. Hon. James T. Fant, Judge. Appellants, Harrison and Grant Jones, were jointly indicted for the murder of John Phelps, and, being tried therefor, were convicted of manslaughter. They made a motion for a new trial, which was overruled. Hence this appeal.

From the circuit court-of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The appellee, the Postal Telegraph-Cable Co., constructed its line of telegraph across the state of Mississippi, following the public highways.

From tlie circuit court of Lincoln county. Hon. J. B. Ci-irisman, Judge. Appellants, Hyman Bros., brought suit in the court below against appellee, Charlotte Rollins, administratrix of the estate of Peter Rollins, her deceased husband, to enforce payment of two promissory notes executed by the deceased, one dated August 25,1888, and the other January 18,1889.

<p>From the circuit court of the second district of Coahoma county.</p> <p>Hon. R. W. Williamson, Judge.</p> <p>The opinion states the case.</p> <p>The sole purpose which actuated the legislature in passing the act dividing Coahóma county into two judicial districts was to afford the people residing in each of the subdivisions greater convenience and less expense in transacting public business. .Keeping this purpose in view, there can be no difficulty in arriving at a proper construction of the act. Its purpose must be made effective, or the main thing which brought about the enactment of the law, especially this section relating to assessments, will be defeated. A statute cannot be abrogated by a strained construction of its plain language. Bonds v. Creer, 5G Miss., 710 ; Railroad Co. v. Gregory, 58 Am. Dec., 589, and note.</p> <p>Aside from the proper construction of the act, which required that the rolls for the second district should be examined at Clarksdale, and not at Friar’s Point, we submit that the order of the board made at the latter place was not broad enough to effect any change of the roll. The board cannot act except by the orders entered on its minutes. Code 1892, § 287 ; Clayton v. McWilliams, 49 Miss., 311; Bridges v. Clay County, 58 lb., 817. Every action taken on any subject, must be evidenced by the entries on the minutes. Qrump v. Supervisors, 52 Miss., 107.</p> <p>The order must point out what changes are made in the roll, either specifically or by the employment of such language as will enable any person to ascertain from the minutes the action taken by the board. No other rule would .be practicable. The clerk may understand the intended action of the board one way, and the members or individuals another.</p> <p>It is manifest that the order at Friar’s Point does not effect any change in the roll as filed by the assessor. It does not in any manner identify the alterations which it is claimed the board intended to make, nor the effect of the alleged changes.</p> <p>The utmost effect of the board’s action, both at Clarksdale and at Friar’s Point, was the approval of the rolls as filed by the assessor. On this point, see Lacey v. Davis, 66 Am. Dec., 524. We insist that the proper place to take action on the roll for the second district Was at Clarksdale, and, that being true, the order certainly approves the roll filed by the assessor.</p> <p>All allegations of fact, and admissions of the board outside the record, are merely surplusage, and present no issue. See Phelan v. San Francisco, 6 Cal., 531. Section 3794, code 1892, positively requires an order of approval entered on the minutes, or the roll filed by the assessor will be approved by operation of law. The manifest purpose of the statute is to regard each roll as distinct, on which action is to be taken separately, just as if there were two counties. The demurrer should have been sustained.</p> <p>But, if the legislative will, plainly expressed as to the two districts, must be defeated, still the demurrer of the appellants was well taken, for no authority is shown in the clerk to alter the assessment rolls filed by the assessor. The action of the boai’d had xxo effect other thaxx the approval of the roll without change.</p> <p>1. Even if we admit that the action taken by the boax’d at Fxfiar’s Point on the roll for the second district was illegal, yet the subsequent action at Clarksdale operated as an approval of the corrected roll, and not of the roll as originally filed by the assessor. The board had before it the roll as corrected, and the action was ta'ken on this roll.</p> <p>2. It was not necessary that entries should be made on the minutes of the board, to identify all the corrections. The statute requires the board to meet and hear objections and make corrections, and to approve the roll. It is contemplated that this should be done by a general order. Code 1892, §§ 3792, 3794. The case of Lacey v. Davis, 66 Am. Dec., 524, is not applicable, as the statute there construed was materially different from ours, in that it required the order to be entered on the journal.</p> <p>The judgment should be affirmed.</p> <p>Argued orally by D. Mayes, for appellant.</p>

From the chancery court of Yazoo county. Hon. H. C. Conn, Chancellor. Richardson sued Ricks in the circuit court, and, at the September term, 1891, recovered judgment against him for $2,000. Ricks made a motion to set aside the judgment, and the court entered an order overruling it. Afterwards, during the term, the defendant moved the court to set aside this order, again asking that the judgment by default be set aside for reasons stated.

From the circuit court of Copiah county. Hon. J. B. Ciirisman, Judge. This is an action, begun in the justice court, by-Barlow, trustee in a trust-deed, to recover of appellee, Brittain, the value of certain cotton covered by the trust-deed, which Brittain had purchased from the grantor.

From the circuit court of Jackson county. Hon. S. H. Terral, Judge. This is an action of attachment begun in December, 1891^ by Mack, Stadler & Co. against Morris Jacobs. It is subject to the provisions of “ An act relating to attachment cases,” approved March 11, 1884 (Laws, p. 76), the first section of which is as follows : “Section 1.

<p>1. Railroads. Shipment of live-stock. Transportation of shipper.</p> <p>A stipulation in the bill of lading of live-stock that the shipper designated in it may aceomxiany the stock on the freight-train free of charge can be availed of only by him. Another, though assisting the shipper, and claiming an interest in the stock, who, without procuring a ticket or tendering Ms fare, also boards the train with the shipper, intending to ride free, does not thereby become a passenger.</p> <p>2. Same. Trespasser on train. Injury to. Case.</p> <p>And if, soon after boarding a train, a collision is imminent, and, to avoid danger, such person leaps from the train, and is injured, he will not be held to have acquired the rights of a passenger, merely because he had entered the caboose with the shipper, without objection by the conductor, who merely expressed surprise that he also was going, it appearing that the conductor was busily occupied, and, up to the time of the accident, had not demanded his fare, or seen the bill of lading, or learned of such purpose to claim free passage under it.</p> <p>3. Railroads. Injury to trespasser. Liability for.</p> <p>In the absence of wantonness or wilfulness on the part of the servants of a railroad company, it is not liable for injury to trespassers, whether in its train or on its track.</p>

From the circuit court of Quitman county. Hon. B,. W. Williamson, Judge. The appellees executed a trust-deed, conveying certain land to a trustee, to secure an indebtedness to appellant, Marks. After default, the land was regularly advertised and sold by a substituted trustee, and purchased by Marks, the beneficiary. Appellees refused to surrender possession, and Marks brought this action of unlawful entry and detainer, under § 2645, code 1880.

Motion in supreme court to dismiss the appeal. Appellee, W. V. Sullivau, brought an action against appellant, the Western Union Telegraph Co., in a justice court of Lafayette county, to recover the sum of twenty-five dollars, the statutory penalty prescribed by the act of 1886 (Laws, p. 91) for failure to promptly transmit and deliver a telegram. There was a judgment for plaintiff' in the justice court, and also in the circuit court, on appeal, for the said amount.

Erom the circuit court of Jackson county. Hon. S. H. Terral, Judge. The opinion states the case. The contention of opposite counsel is that the local law under which appellant was exempted is repealed by paragraph (k), § 90 of the constitution. It will not be disputed that, without the parenthetical clause referred to, no. existing law of the character inhibited would be nullified.

<p>From tbe circuit court of tbe first district of Hinds county.</p> <p>Hon. 3. B. Chrisman, Judge.</p> <p>Appellant was in Bowling Green, Kentucky, and there purchased from the agent of a line of railway which connects with the Illinois Central Eailroad at Milan, Tennessee, a through ticket to his home, Crystal Springs, Mississippi, on the line of appellee’s road. He informed the agent that he wished to go on the first train that went south on appellee’s road after Milan, the junction, should be reached, stating his reasons, and the agent sold him the ticket for that train, informing him when it would pass Milan. This was a fast passenger-train, running between Chicago and New Orleans, known as the vestibule limited. On entering the train at Milan his ticket was demanded, and he exhibited it. The ticket was punched by two successive conductors on appellee’s road. Soon after reaching Canton, the third eonductor, on being shown the ticket, informed appellant that the train would not stop at Crystal Springs, and that he would have to get off at Jackson, a stopping-place just ahead, and await another train that carried local passengers. Appellant objected, and informed the conductor that his business engagements were such that he could not do this. He did not wait at Jackson, as suggested, and, the conductor refusing^to stop at Crystal Springs, he got off at a watering-place beyond, from whence he returned to his home, traveling about ten miles in a buggy through the cold and dark. He brought this suit to recover damages, and on the trial the court gave the jury a peremptory instruction to find for defendant, and judgment lyas entered accordingly.</p> <p>The opinion contains a further statement of the case.</p> <p>1. One purchasing a ticket for a certain station, to go by a particular train, is entitled to enforce the contract. Railroad Co. v. Nuzum, 50 Ind., 141; 2 Wood’s Ry. L., § 356.</p> <p>He may rely upon information derived from agents apparently having authority to act. 2 Wood’s Ry. L., p. 1125; Railroad Co. v. Pierce, 47 Mich., 277.</p> <p>The real contract may be shown by parol. Railroad Co. v. Winters, 143 H. S., 60; Railroad Co. v. Riley, 68 Miss., 765; Hubbard v. Railroad Co., 64 Mich., 634. See also Plott v. Railroad Co., 63 Wis., 511; Wells v. Railroad Co., 67 Miss., 24.</p> <p>The rules.of the company could not affect the special contract. Passengers are not presumed to know them. Beau-champ v. Railroad Co., 56 Texas, 239.</p> <p>It was for the jury to say whether there was a special contract.</p> <p>2. It is shown that there was a custom, known to and relied upon by plaintiff, to stop this train for through passengers. On this point see Railroad Co. v. Randolph, 53 111., 510; Railroad Co. v. Adcock, 52 Ark., 406.</p> <p>1. Appellant’s claim is without merit. He had full knowledge of the rules, and was simply trying an experiment.</p> <p>As to the right of a railroad company to run through trains, stopping at selected stations, see 44 Am. & Eng. E. E. Cas., 292 ; 127 IT. S., 390; 132 lb., 146; 38 Kan., 608; 50 Ind., 141; 67 lb., 567; 76 Mo., 288.</p> <p>2. It is the duty of a passenger to ascertain if'the train is to stop at his destination. 9 Am. & Eng. E. E. Cas., 315; 50 Ind., 141.</p> <p>3. If the passenger is misinformed by the ticket-agent, the conductor is not bound to stop his train in violation of rules. 3 Am. & Eng. E, E. Cas., 340; 18 lb., 253.</p> <p>4. Taking up or punching the ticket does not bind the conductor to stop. 53 111., 310.</p> <p>5. The duty of the company, even where the ticket-agent has given the passenger the wrong information as to running of through train, is to give him notice before reaching the station, in order that he may change to local train. 18 Am. & Eng. E. E. Cas., 252; 21 lb., 319; 34 Ib., 298.</p> <p>6. Humphries was not misled. There is no evidence that he would have taken any other train than this, if he had not received the alleged information. He was not told that this train would stop at Crystal Springs. He knew it would not stop there.</p> <p>7. There is no sufficient proof of the alleged custom to stop for any class of passengers.</p> <p>8. There is no evidence that the agent at Bowling G-reen ■ had any authority to make a contract changing the rules of appellee.</p> <p>Argued orally by M. Green, for appellant, and J. B. Harris, for appellee.</p>

From the circuit court of Coahoma county. Hon. R. W. Williamson, Judge. In January, 1891, appellants, English & Holmes, merchants, made a voluntary assignment, purporting to convey all their assets for the benefit of their creditors. Certain debts were preferred, among others a debt of about $5,000 to S. G-. English, father of one of the assignors.

Prom tbe chancery court of Madison county. Hon. H. C.- Conn, Chancellor. The opinion contains a statement of the case. The proof shows that as far back as 1859 Franklin street extended west of the railroad. This street is shown to have been on a straight line. Until the filing of the bill in this case, no claim was ever made by the defendant for that part of the street lying north of its lot.

<p>1. Railroads. Fellow-servant. Const. 1890, §193. Fireman, telegraph operator.</p> <p>A fireman on the locomotive and a telegraph operator at one of the company’s stations are engaged in different departments of labor, or “ about a different piece of work,” within the meaning of §193, constitution 1890, and the railroad company is liable for the injury to or death of the fireman by a collision, resulting from the negligence of the operator.</p> <p>2. Same. Const. 1890, §193. Injuries causing death. Who may sue.</p> <p>For injuries to an employe resulting in death, an action against a railroad company, based on § 193, constitution 1890, as to fellow-servants, must be brought by “ the legal or personal representative ” — that is, by the executor or administrator of the decedent.</p>

<p>From the chancery court of Lincoln county.</p> <p>Hon. H. C. Conn, Chancellor.</p> <p>By § 5 of “an act to amend the charter of the city of Brookhaven,” approved February 17, 1890, the board of mayor and aldermen of said city were authorized to issue bonds, in an amount not exceeding fifteen thousand dollars, “ for the purpose of purchasing a site and erecting thereon suitable buildings for the use of the public schools of said-city, and to purchase all necessary furniture, etc., for .said schools.” It further provided, that of the said bonds, $3,000 might be used for the purchase of a site and the erection of a suitable building for the free public school for colored children, and the balance of the proceeds of the bonds should be used for said purposes for the white schools.</p> <p>Other sections of the act provide for the levy of a special tax to pay the bonds and interest, and it is provided that the title to the lot and buildings and apparatus so purchased or acquired shall vest absolutely in the city. Power is also conferred on the trustees of tlie public schools to lease out the school-buildings for a series of years, provided the lessee carries on the schools for at least ten months- in each year?, and free tuition is afforded the edueable children of the city..</p> <p>Section 9 of the act, in seeming conflict with § 5, provides that “ the proceeds of said bonds shall be used by the mayor and board of aldermen for purchasing a suitable site, and erecting thereon suitable buildings, for the white public school of said city.”</p> <p>Bonds were issued as provided for by said act, for the purpose of building and equipping a separate school for whites in said city, and a special tax was levied to pay the accruing interest thereon.</p> <p>This bill was- filed by certain resident tax-payers of the city, seeking to enjoin the collection of the tax, their contention being that the bonds are void, because so much of the act authorizing the establishment of separate schools for whites and blacks, and taxation to pay therefor, is violative of the fourteenth amendment of the eonstiution of the United States, and also of the constitution of 1869 of this state.</p> <p>Section 21, article 1, which it is claimed is violated by said act, is as follows: “No public money or moneys shall be appropriated for any charitable or other public institution in this state making any distinction among the citizens thereof;Provided, That nothing herein contained shall be so construed as to prevent the legislature from appropriating the school-fund in accordance with the article in this constitution relating to public schools.”</p> <p>The other provisions involved are those providing for the establishment of a uniform system of free public schools- (§ 1, art. 8), and for equality and uniformity of taxation (§ 20,. art. 12).</p> <p>Aside from the alleged invalidity of the bonds on constitutional grounds, the bill alleges certain irregularities and misconduct on'the part of the trustees in selling a portion of' the bonds, in selling some to persons interested as aldermen or trustees, and in purchasing a site, the title to which is doubtful and in controvex’sy. But, as these and other matter’s alleged do not affect the validity of the bonds and only relate to the conduct and management of the schools, and are-not insisted on in this court, it is not deemed necessary to state the case in any other aspect.</p> <p>The court sustained a , demurrer to the bill, and dismissed it, and from this decree complainants appeal.</p> <p>The Brookhaven charter provides for a system of public schools wholly 'irreconcilable with the general system provided by the act of 1886 for all public school's in the state. The latter squares with the organic law; the former is, a wide departure from it. It provides for a public school under the entire control of trustees, whose duties are nowhere defined in the charter or its amendments. "We submit that, in view of the utterance of this court in Otken v. Damián, 56 Miss., 758, the act is unconstitutional in so far as it authorizes the purchase of grounds, the establishment of the school and issuance of bonds. The scheme provided by the act for leasing the school-building is wholly different from the constitutional scheme. If the act is maintainable, it overthrows the uniform system of free public schools.</p> <p>We concede that a local tax to construct a public school-building is valid. Daily v. Swope, 47 Miss., 378. But it must be a school-house, constructed as a common free school-building, under art. 8 of the constitution.</p> <p>We do not contend that the races may not be separately educated upon equal terms at public expense. This is to be commended. We, however, assume from the act itself that equal advantages are not secured to the colored children of the city. For this reason the act is violative of § 21, art. 1, const. 1869. This section refers to any moneys raised by taxation, whether in a city or in the state. The school-building is a “ public institution,” the charter makes the appropriation, and the money from taxation is “ public money,” and the exclusion of negro children is a “distinction among the citizens of the state.”</p> <p>The act also violates the fourteenth amendment to the constitution of the United States. See Ward v. Flood, 17 Am. Bep., 405; Roberts v. Boston, 5 Cush. (Mass.), 198.</p> <p>Since the main and obvious scheme of the act of 1890 is to provide for the issuance of bonds and taxation for a public school for whites, and this is unconstitutional, the whole act must fail.</p> <p>Complainants cannot, in this suit, complain of any mismanagement of the school taught in the building, to pay for wl;ich the bonds were issued. The only matter involved is the validity of the bonds, and of the tax. The argument for appellants is, that, while the races may be separated in public schools, this must be done as a matter of management, after buildings are provided; that when a public school-building is being provided and a tax levied, the real purpose — to separate the races — must be concealed or obscured. Of course, such a conception is without merit. The main controversy involved is too well settled to need argument.</p> <p>The legislation under which the bonds were issued is in strict harmony with the general scheme provided for free public schools. It squares fully with the tests given in Otken v. Lamkin, 56 Miss., 758. The requirement that taxation shall be equal and uniform does not prohibit local taxation for local purposes. On the subject of the uniformity of the system of public schools, see Bourdeaux v. Meridian, 67 Miss., 304; Wynn -v. State, lb., 312.</p>

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. The law requires that when an assessor shall discover that any person or property has escaped taxation for former years, he shall assess such person or property. Code 1880, § 486; Code 1892, § 3768.

From the chancery court of Lafayette county. Hon. W. R. Triso, Chancellor, presided by interchange.

From the chancery court of Washington county. Hon. W. R. Trigg, Chancellor.

<p>From the chancery court of Hancock county.</p> <p>Hon. W. T. Houston, Chancellor.</p> <p>The appellee filed her bill in the chancery court of Hancock county against J. F. Cazeneuve, sheriff of said county, and tbe sureties on his official bond, alleging that the sheriff, under a writ of attachment against J. T. Villars for $290.87, levied on certain personal property of complainant of the value of $1,825, taking the same into his possession; that the levy was wanton, oppressive, and excessive; that the property was, by the sheriff, for safe-keeping, placed, in a house which was burned, and the property so levied on, to, the value of $500, was destroyed, and the remaining property damaged to the extent of $500. The bill further alleged that complainant interposed a claim for said property in the attachment suit, which claim was adjudged against her, and that the property saved was sold by the sheriff, the proceeds being more than'sufficient to satisfy the judgment and costs! that the sheriff has not paid or accounted to complainant for the property so destroyed and damaged; but had refused so to do; that complainant did not know the exact amount of property destroyed, or the extent of the damage. The prayer was for the discovery as to the nature and amount of property destroyed and injured, and for an accounting as to the loss, and a decree against the officer and his sureties for the sum found to be due.</p> <p>Defendants demurred, on the ground that the bill showed no equity, and because complainant’s remedy was at law. From a decree overruling the demurrer, defendants appeal.</p> <p>The real complaint is that the levy was wanton and excessive. The fact that the'goods were destroyed by fire is immaterial. If the levy was not excessive, the officer is not liable. The bill does not aver any negligence in the manner of keeping the goods. Barnett v. Dalton, 69 Miss., 611. The action is therefore only for the tort, and is not cognizable in the chancery court. The fact that a discovery is prayed does not give jurisdiction. 2 Daniel’s Ch. PI. & Pr., 1557.</p> <p>Section 161, constitution 1890, does not confer jurisdiction. That section only applies in cases where fiduciaries and officers have lost, wasted, or misapplied property or funds lawfully in their hands. It does not extend to actions ex delicto. This is a suit for the tortious act of the sheriff in taking property. The court has no jurisdiction.</p> <p>It was not necessary to charge the sheriff with negligence in failing to take care of the goods, as the seizure of the excess was unlawful. 7 Lawson’s Rights, Rem. & Pr., § 3827; Freeman on Ex., § 253; Smokey v. Peters, 66 Miss., 471.</p> <p>This is not an action for the trespass in taking the property, but is a suit to compel an accounting. The chancery court has jurisdiction concurrent with the circuit court of suits on bonds of public officers for failure to account for money or property received and wasted. Constitution 1890, § 161. That complainant could have sued at law for damages does not affect her right to sue in the chancery court for the value of the property. The sheriff took the property under the color of his office, and equity has jurisdiction in a suit on the bond to compel him to account for it.</p>

Erom the circuit court of Warren county. IIon. John H. Gilland, Judge. Action by Henry Evans against the Louisville,' New Orleans & Texas Railway Company to recover damages for personal injuries. The court sustained defendant’s motion to exclude plaintiff’s testimony, and, from a judgment for defendant, plaintiff appeals. The case is stated in the opinion.

From the chancery court of Warren county. Hon. Claude Pintard, Chancellor. The appellee is a domestic insurance company, chartered, under the laws of this state, and domiciled in Vicksburg. It paid for the year of 1892 the privilege tax of $1,000, required to be paid by every fire insurance company, whether domestic or foreign, doing business in this state.

From the circuit court of the second district of Coahoma county. Hon. R. W. Williamson, Judge. This is a proceeding by mandamus.

From the chancery court of Bolivar county. Hon. W. R. Trigg, Chancellor. Held: at which there should be submitted to the legal voters of the town the question to subscribe for said capital stock, and issue thirty-year bonds in payment therefor, to bear six per cent, interest from October 1,1890, said bonds and interest to be payable at the Hanover Bank, in the city of New York.

From the circuit, court of Sunflower county. Hon. B. W. Williamson, Judge. Appellants owned a.stock of goods in a store in Sunflower county, Mississippi, and they instituted this action of trover against the appellee, Montgomery, for the alleged conversion of the same. The goods are described in the declaration as consisting of a great many different kinds of articles, the whole being of the value of ¡$2;500.

From the circuit court of Warren county. Hon. E. W. Williamson, Judge. Literally, a full panel was presented to the prisoner at the outset. The question is whether, under §1423, code 1892, it was proper to permit a separate presentation of jurors to fill the panel. I submit the question to the bourt. Argued orally by Frank Johnston, attorney-general.

From the circuit court of Warren county. Hon. J. D. Gtlland, Judge. Appellant is a citizen of Louisiana. He was acting as agent for the Southern Installment Manufacturing Company, a corporation domiciled at New Orleans in said state, selling goods in this state. In the prosecution of its business, this company employed a number of agents or canvassers in the different states, appellant being one of the number.

<p>Municipality. Validity of ordinance. Power. Retailing meats.</p> <p>Under a, charter giving the right “ to regulate the vending of meats brought into the city for sale,” and “to license, tax and regulate butchers,” a municipality may adopt ordinances to prevent the retailing of fresh meats from 4 o’clock p.m. to 9 A.M., except by persons licensed.</p>

From the circuit court of Warren county. Hon. J. JD. Gilland, Judge.

' From the circuit court of Sunflower county. Hon. R. W. Williamson, Judge. Appellee, Oliver, failed to pay the rent for the premises leased from Paxton, who, thereupon, instituted proceedings' before a justice under §1333, code 1880, to recover possession of the premises, and obtained judgment. The defendant gave bond and appealed, remaining in possession. In the circuit co.urt plaintiff again had judgment.

From the chancery court of Bolivar county. Hon. W. R. Triso, Chancellor. The case is stated in the opinion. The evidence in this case is not sufficient to overcome the prima facie ease made by the registration of the deed. The presumption of delivery raised by the record of the ■deed cannot stand in the face of the positive testimony to the contrary. Bullet v. Taylor, 34 Miss., 708; Kearney v. Jeffries, 60 Miss., 685.

From the circuit court of Maclisou county. Hon. J. B. Chrisman, Judge. Ejectment by appellee against appellaut. On the trial plaintiff introduced in evidence a patent from the state of Mississippi, executed February 12, 1891, in which the land in controversy was conveyed to her.

From the chancery court of Madison county. Hon. H. C. Conn, Chancellor. GL W. Covington and Gr. W. Journey were partners, conducting a livery-stable business at Canton, Miss. The partnership effects consisted of horses, vehicles and other personal property.

From the circuit court of Washington county. Hon. B. W. Williamson, Judge. Appellee is a wholesale dealer in carriages and other vehicles, and in 1891, through its agent, sold and shipped to J. C. Head & Co., retail dealers in Greenville, Miss., a delivery-wagon and roekaway, the title to which is involved in this action.

From the chancery court of Harrison county. Hon. W. T. Houston, Chaucellor. In 1887, appellee, Catherine Cook, recovered a judgment against L. B. Holly for $100 in an action of slander. While her action was pending, Holly instituted a suit against her for slander, and likewise recovered judgment for $25. In April, 1892, an execution issued on the laht-mentioned judgment, and was levied upou a house owned by Mrs. Cook, the defendant.

From the circuit court of Winston county. Hon. A. G-. Mayers, Judge. Appellant was convicted of murder, and' sentenced to the penitentiary for life. The opinion- contains a sufficient statement of the ease to indicate the point decided.

From the circuit court of Lee county. Hon. Newnan Gayce, Judge. Appellant was convicted' of forgery. The indictment alleged that the forgery was committed for the purpose of defrauding the Postal Telegraph-Cable Company.

From the circuit court of Pike county. Hon. W. P. Cassedy, Judge. Appellant, West, was convicted of unlawful retailing. The indictment, in the first count, charges that he did, on the fifteenth day of December, 1892, in the county of Pike, unlawfully sell vinous and spirituous liquors, he not then and there having any authority so to do.

From the chancery court of the second district of Chickasaw county. Hon. Baxter McFarland, Chancellor. The case is stated in the opinion. As a bill to remove clouds, the bill was maintainable. 25 Mo., 153; 99 Mass., 209. The defendant, Henry Dahmer, being left free to pursue his civil remedies, could not possibly be endangered by a retention of the injunction. It should have been retained until final hearing.

From the circuit court of DeSoto county. Hon. Eugene Johnson, Judge. In July, 1891, McDavitt, James & Co. recovered a judgment in the justice court against the firm of Thos. Eox & Co. and Thos. Eox individually, and caused an execution thereon to be levied on three mules as the property of Thos. Eox. Thereupon, appellant, Mitchell, filed a claimant’s áffidavit and bond. The affidavit recited that the mules levied on were not the property of Thos.

From the chancery court of Copiah county. Hon. II. C. Conn, Chancellor. B. F. Martin, with his wife, E. J. Martin, resided in Copiah county, Mississippi. Prior to 1866, he was the owner of a tract of land in Sunflower county. He became financially involved, and Wesson & Drane recovered a judgment against him, which was transferred to one Barry.

From the circuit court of Clarke county. Hon. S. H. Terral, Judge. J. S. VanDiver and his wife, G. G. VanDiver, resided in the state of Louisiana.

From; the circuit court of Jefferson county. Hon. W. P. Cassedy, Judge. On the fourteenth day of September, 1891, appellees, Cain & Howe, merchants of Natchez, Miss., sued out an attachment against the Church Hill Lumber Company, a corporation under the laws of New York, which bad been conducting a saw-mill business in Jefferson county, Miss., to collect a debt of $1,523.80.

From the chancery court of Lincoln county. Hon. II. C. Conn, Chancellor. The appellant, Cole, filed the bill in this case to confirm tax-titles to certain lands. Appellees, E. Z. T. Coon and W. C. Cood, were made defendants, as were any or all other persons claiming title to the land. The bill alleges that the land was. owned by the state of Mississippi, it having acquired title through tax-sales, and that oh September 25, 1883, it was conveyed to complainant by the auditor.

From the chancery court of Sunflower county. Hon. W. R. Trigg, Chancellor.

From the circuit court of Bolivar county. Hon. W. R. Williamson, Judge. Ejectment by W. S. Gibbs against John McGuire. The assignments of error present many and complicated questions, but the single point decided by the court is sufficiently illustrated by the facts stated in the opinion. On the trial the court, as to the issue here involved, gave a peremptory instruction for defendant, and plaintiff appeals.

Prom the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Replevin by Wallace McPherson against the Acme Lumber Company. The ease was, by consent, tried before the court without a jury, upon an agreed statement of facts, the substantial parts of wbicb are as follows: In January, 1891, McPherson sold to the Acme Lumber Company certain personal property, being the machinery and outfit for a dry-kiln.

<p>From the circuit court of the' first district of Hinds county.</p> <p>Hon. J. B. Chrisman, Judge.</p> <p>The opinion states the ease.</p> <p>1. The bond is to Millsaps College, or bearer, to pay the college or its assigns. The college does not sue, and is not the bearer. It never assigned, and the bearer had no cause of action. Only the college or the bearer could sue, and the bearer could not sue until there was neglect or refusal to pay the college or its assigns. This is too plain for construction. This, as we submit, alone settles the case, and necessitates reversal.</p> <p>2. But the bond, being conditioned on the performance of services, was never under the operation of the law merchant, and is not in the contemplation of its rule that failure of consideration could not be set up against negotiable paper. Shackleford, v. Franks, 25 Miss., 49. The contract being with bearer to. pay the college, or the assigns of the college, contingent on location of the college, leaves open all defenses between the obligors and the college. The bearer could not set up any higher right to defeat equities than the college or its assigns could, for the payment was to be' to them, and not the bearer.</p> <p>The appellants would put upon the word “ assigns ” a limitation not warranted by any thing in the instrument sued on or the accepted meaning of the word. Assigns are “ persons to whom property has been transferred.” In some cases the transfer must be made .by deed; in others, any writing signed or words spoken by the assignor, showing the intention to transfer, is sufficient; in others, mere indorsement is effectual; and again, as in obligations payable to bearer, mere delivery'invests the assignee with all the rights of the original holder or owner.</p> <p>The obligation in suit is one payable to bearer, nor is it any the less such because of the use of the alternative expression, “ Millsaps College, or bearer.” The word “ assigns,” subsequently employed, is referable to any one who, receiving it from the college, might become the bearer. Every subsequent bearer was the assignee of the college within the meaning of the word as employed in the particular writing, and also as defined and used by law writers. Burrill on Assignments (2d ed.), 1, note 1; Daniel on Neg. Inst., § 729, p. 585; Bapalje & L. Law Die., vol. 1, 87, 89.</p> <p>The appellants are also mistaken in their view of the case, when they seek to apply the rule that the obligation, being for services, is not under the operation of the law merchant, and that, the liability being contingent upon the location of the college, the defendants could avail of all defenses based on failure of consideration, etc. The obligation sought to be enforced, so far as concerns the defendants, is one for the payment of money, and. not, as in Shakleford v. Franks, for the performance of services. The college being located by the other party to the contract, the defendants owed a specific sum of money that was not payable in services, or any thing except legal tender currency.</p> <p>Again, the location of the college was not the burden assumed by defendants, and the alleged failure of consideration involved other matters entirely disconnected with such location. The pleas, referred to as setting up an alleged failure of consideration, did not really aver any failure of consideration. The consideration is expressed iu the instrument sued on, and shown to be the permanent location of the college in Jackson or its vicinity, and the allegations of the declaration on that head are not controverted.</p>

From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. Appellant, Alexander, plaintiff iu a judgment against the Equitable Fire Insurance Company, of Meridian, Mississippi, caused a writ of garnishment thereon to issue against J. C. Lloyd and others, the appellees herein, returnable before the circuit court of Holmes county on the fourth Monday of November, 1892.

From the circuit court of the second district of Yalobusha county. Hon. Eugene Johnson, Judge. One Cross, to whom the Illinois Central Railroad Company owed $61 as .wages, assigned his account therefor to the appellees, Bryant & Shackelford, and the latter gave notice of the assignment to the depot-agent of the company at Water Valley.

From the chancery court of Washington county. Hon. W. E-. Triso, Chancellor. Prior to 1891, the Greenville Compress & Warehouse Company and the Planters’ Compress & Warehouse Company, corporations having charters under the laws of this state, owned and operated, each on its own account, a cotton compress and warehouse in the city of Greenville.

From the chancery court of Lafayette county. Hon. B. T. Kimbrough, Chancellor. The bill in this case was filed by the state in behalf of Lafayette county against ,J. M. Hall, former treasurer of said county, and the sureties on his bonds, executed as such for two successive terms of office.

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

From the circuit court of Clay county. Hon. C. IT. Campbell, Judge. This is an action of replevin begun before a justice of the peace by J. L. Stevens, trustee, in a deed of trust given by appellant, Joe Russell, in March, 1891, to secure a debt due to W. L. Childress.

From the circuit court of the second district of Yalobusha county. Hon. Eusene Johnson, Judge. Appellant, E. Badley, having a claim against one-Benson, placed it, for collection, in the hands of A. B. Ely, Jr. The latter, although a licensed attorney, was not at the time actively engaged in the practice of law, but acted as a collecting agent. Pie caused the claim in .question to be sued on before a justice of the peace, and recovered judgment.

From the circuit coui’t of Copiah county. Hon. J. B. Ci-irisman, Judge. Appellant, Elizabeth Sneed, sued appellees to recover damages for personal injuries.

Prom the circuit court of Wilkinson county. Hon. W. P. Oassedy, Judge. This is an action of ejectment, brought in July, 1892, by E. Lindenmayer and other plaintiffs, about twenty in number, against Gunst, to recover a large tract of land, and also rents and profits. Gunst was a mere tenant of J. H. Payne, who was admitted to defend in his stead.

From the chancery court of Lauderdale county. Hon. T. B. Graham, Chancellor. This is a bill filed May 13, 1892, in the chancery court of Lauderdale county by appellees, the Diem & Wing Paper Company and Louis Snider’s Sous & Co., in behalf of themselves and such other creditors of the Meridian News & Publishing Company as would join therein.

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

From the circuit court of Warren county. Hon. J. D. Gilland, Judge. The opinion states the case. It will be observed that the decision has no reference to that part of § 112 of the constitution authorizing the legislature to provide for a special mode of valuation and assessment for railroads and other property not situated wholly in one county.

From the chancery court of the first district of Carroll couuty. Hon. T. B. G-raham, Chancellor. The case is stated in the opinion. The jurisdiction of the circuit court was first invoked by one of the appellees. That jurisdiction cannotnowbe ousted by a resort to equity, even though the relief prayed be peculiar to equity. 1 Pom. Eq. Jur., § 179, and cases cited. Trial by a jury is a constitutional right, and will be protected.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. Appellant, Eliza Rose, a colored woman, brought this action for damages against the Louisville, New Orleans & Texas Railway Company for forcibly ejecting her from the waiting-room for whites at Leland, Mississippi, a station on defendant’s railroad.

From the circuit court of Monroe county. Hon. Look E. Houston, Judge. Appellees sued the. Mobile & Ohio Railroad Company for damages alleged to have been sustained by them, by reason of a breach of contract on the part of defendant in transporting two car-loads of horses from Meridian to Aberdeen, Miss.

From the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge. On-August 25, 1892, appellant was indicted in the circuit court of Yazoo county, for the unlawful sale of liquor on August 23, 1892, the county having voted against the sale of liquor at an election'held under the local option law in August, 1888. He was convicted in February, 1893, and sentenced to imprisonment in the county jail for sixty days, and to pay a fine of $100.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Appellant was convicted in the court below. He made a motion in arrest of judgment, on the ground that the indictment was in the alternative, and that it' charged no offense, which motion was overruled. Hence this appeal. The opinion contains a further statement of the case. The indictment charges no offense. It does not aver that there was any betting at the table or bank.

Prom the circuit court of Union county. Hon. Eugene Johnson, Judge. Appellant was convicted of the murder of one Brice Adair. The opinion states the case. Filed a lengthy brief discussing different assignments of error, and, as to the questions passed upon by the court, making the following points: 1. It is common learning that the acts and declarations of a conspirator are not admissible against a co-conspirator after the execution of the conspiracy.

From the circuit court of the second district of Yalobusha county. Hon. Eugene Johnson, Judge. Appellant has been convicted of the murder of John B. Morgan, and sentenced to life imprisonment. The facts of the case, so far as necessary to an understanding of the several points passed on by the court, are stated in the opinion. 1.

<p>From the circuit court of Leflore county.</p> <p>ITon. It. W. Williamson, Judge.</p> <p>Mandamus bjf the state, on the relation of the attorney-general, against the board of supervisors of Leflore county. The purpose is to compel that county to unite with Carroll county in building a line fence between the two counties, such fence being made necessary by the adoption of the stock law in Carroll county.</p> <p>The petition alleges that an election was held in Carroll county August 16, 1892, under chapter 47, code 1892, to determine whether the stock law should be declared in force, and that said election resulted in favor of putting the law into operation; that the board of supervisors had declared that the law should be in effect after February 15,1893 ; that the board of supervisors of Leflore county had been notified of the result of the election; that Leflore is affected by the adoption of the law in Carroll county, and that, in order to secure its operation, a fence between the two counties is necessary to prevent stock from Leflore county trespassing in Carroll; that the board of supervisors of Carroll county had attempted, unavailingly, to confer with the supervisors of Leflore county in regard to the erection of the fence; that Carroll county ha.d proceeded to award contracts for the erection of one-half the fence, which is now being built; that the board of supervisors of Leflore county has failed and refused to take any official action in reference to building the fence or defraying any part of the expense of the same. The petition was filed February 1, 1893.</p> <p>■ The defendants demurred to the petition on various technical grounds. Among other things, it is assigned as cause of demurrer that the petition fails to show that Leflore county had not adopted the stock law; that it fails to show that the election had been properly ordered and held in CarrolL county; that it fails to show that any provision had been made, or could be made, to secure a right of way upon which to build the fence; that the issuance of a writ of mandamus is not authorized under the facts stated .in the petition, and that chapter 47, code 1892, in relation to fences and stock, is unconstitutional.</p> <p>The demurrer was overruled, and, defendants declining to answer, judgment final was entered granting the prayer of the petition. Defendants appeal. The opinion contains a further statement of the case.</p> <p>1. The petition does not show any sufficient order of the board for the election in Carroll county. The powers conferred on the board by chapter 47, code 1892, are extraordinary, and it must appear affirmatively that every thing required was done, and at the proper time and place.</p> <p>2. Section 2061, code 1892, provides that the counties shall jointly build and keep in repair fences on or near the county line. Here the petition alleges that Carroll county alone is building one-half of said line fence, which it was not authorized to do. There is no authority to compel Leflore county to aid in doing this. Mandamus only lies where there is a specific right or a positive duty, and where there is no other specific legal remedy. Code 1892, §2846; 14 Am. & Eng. Ene. L., 94, note 2 ; 2 Chand. (Wis.), 250.-</p> <p>3. The petition fails to show that Leflore county had not adopted the stock law, and the demurrer should have been sustained for that reason. 14 Am. & Eng. Ene. L., 222, 223.</p> <p>4. Chapter 47, code 1892, is unconstitutional. Section 2056 establishes a .property qualification for electors, and § 2057 provides, as the only qualification of electors, that they shall be resident freeholders or leaseholders for a term of three years or more, while the constitution provides entirely different qualifications. Section 241 of the constitution gives the right of franchise only to male inhabitants, who must possess the qualifications therein mentioned. See, also, §§ 244 and 249, the latter providing for the registration of voters as an essential qualification. The law under consideration permits men, women, minors, and even felons and aliens, to vote. It disfranchises constitutional electors by. fixing a property qualification.</p> <p>This law also violates § 17 of the constitution, which provides that private property shall not be taken for public use except on due compensation being first made in a manner prescribed by law. Here there is no manner prescribed for making compensation to the owners of land for the right of way. The law also violates that section of the constitution which provides that no person shall be deprived of property without due process of law and without notice of trial. Donovan v. Vicksburg, 29 Miss., 247. Here Carroll county is attempting to coerce Leflore county to build the fence which is made necessary without any participation by the citizens of Leflore county. This is taxing Leflore county to protect property in Carroll county. It is taxation without representation.</p> <p>1. Mandamus only lies to enforce performance of an act which the law specially enjoins as a duty. Section 2061, code 1892, provides that counties effected .by putting into operation the stock law shall jointly build or keep in repair line fences.</p> <p>2. Section 2062 provides that the board may levy taxes only on specific lands to provide for building the fence. If the law is of any force, the board is prohibited from levying taxes generally for this purpose. The law taxing specific lauds is unconstitutional. It is not equal and uniform. Const., § 112.</p> <p>In undertaking to declare that benefits will i-esult from the location of the fence, the legislature has not only transcended its powers in acting as a judicial tribunal, but has concluded the citizen as to any claim for damages for taking his property. 3 How., 240; 34 Miss., 241; 36 lb., 310; 37 lb., 182; 39 lb., 385; 65 lb., 335 ; 68 lb., 539.</p> <p>3. No means are provided for the expense of locating the fence. An expensive survey must be made, for which there is no provision. No means are provided for the acquirement of the light of way. It must be built over private property, which cannot be taken until paid for. Const., § 17.</p> <p>4. This section of the constitution provides that compensation shall be made in the manner to be prescribed by law, and no manner is prescribed by the statute .under consideration. The court will not compel the board of supervisors to become trespassers in attempting to take private property which it has no authority to take.</p> <p>5. The chapter of the code under which the election was held is unconstitutional for other reasons. Section 2057 of the code, as to ballots, is utterly vague. The voter could not intelligently mark his ballot, as contemplated by § 246 of the constitution and § 4 of the election ordinance.</p> <p>The statute assumes to confine the vote to freeholders and leaseholders. This cannot be done. Cooley’s Const. Lim., 758, 774, 775; 38 Miss., 652; 58 lb., 738. Females, infants and aliens are made qualified voters, which is not allowable. This is not a matter coming within the police power. Black on Const. Prohibitions, 64; 3 Am. & Eng. Ene. L., 747, note 1; 18 lb., 739, 748; 2'Keut’s Com., 441, and.notes; 9 Mich., 285; Cooley’s Const. Lim., 713; 51 Miss., 738.</p> <p>Voters provided for are not registered as required by § 242 of the constitution. An entirely separate registration is required, owing to the different qualifications of the voters allowed to participate. .On the other hand, persons who are qualified electors under the constitution, could not vote at an election under this statute. See § 2056, code 1892. Section 249 of the constitution prescribes registration as an essential qualification to vote at any and all elections.</p> <p>1. Mandamus is the appropriate remedy. Section 2061, code 1892, prescribes a duty, and vests no discretion. See 5 Nev., 341; 2 Va. Cas., 9, 499; 2 Pick., 419; 5 Ohio St., 497; 23 Fla., 632; 81 Pa., 132; 36 Cal., 595; 47 Md., 145 ; 48 111., 233 ; 80 Ind., 478 ; 63 Miss., 135.</p> <p>The wisdom of the statute is not in question. It is a part of the written law, and will be enforced. If we grant appellant’s contention is correct, that the general funds of the county cannot be used to build the fence, still, we contend that §2062, code 1892, is unobjectionable.</p> <p>As to the right to levy taxes on certain property specially benefited, see 2 Kent’s Com., 340; 5 Vroom (N. J.), 227; 3 Eairfield (Me.), 222; 3 Paige (N. Y.), 73; 47 Miss., 713; Vicksburg Bank v. Worrell, 67 Miss., 47.</p> <p>If the legislature possessed the power to pass a general stock law, it had tlie power to make its operation dependent upon any contingency it might devise. Schulherr v. Bordeaux, 64 Miss., 59.</p> <p>If a survey should be necessary, the hoard of supervisors would have ample power to make it under the general chapter on that subject.</p> <p>2. This is not an election contemplated by the constitution, and registration was not necessary.</p> <p>3.The police power is ample to authorize preventing stock running at large. Cooley’s Const. Lim., 588; Dillon on Mun. Cor., 345; 15 N. W. Hep., 437; 51 Miss., 738; Julienne v. Jackson, 69 lb., 34.</p> <p>The petition sets forth a case authorizing the issuance of the writ, and shows the necessity therefor.</p> <p>1. Mandamus is the proper remedy. Iiigh’s Ex. L. Hem., 413; Moses on Mandamus, 102, 104, 126, 152, 155; 63 Miss., 135. No discretion is vested in the board of supervisors as to the duty in question, which is a plain and ministerial one. Code 1892, § 2061.</p> <p>2. The board has ample power to levy taxes necessary to meet the expenses incident to building the fence. The legislature may impose local taxation in proper cases. Therefore, § 2062 of the code is not objectionable. 27 Miss., 209'; 38 lb., 653; 48 lb., 713; Cooley’s Const. Lim., 617, 619.</p> <p>3. The provisions of the constitution in relation to the qualification and registration of voters have no application. They apply only to such elections as are contemplated by that instrument.</p> <p>4. By the general police power, persons and property are-subject to such restriction and burdens as are necessary to secure general health, comfort and prosperity. Cooley’s Const. Lim., 708; 4 Blaekstone’s Com., 162; 27 Vt., 140; 29 Miss., 53; 94 H. S., 113; 51 lb., 735; Julienne v. Jackson, 69 Miss., 34.</p> <p>5. The power to enact the law included the power to determine the conditions upon which it should become operative-38 Miss., 653 ; 51 lb., 744; Schulherr v. Bordeaux, 64 lb., 59.</p> <p>6. The election ordinance, cited by opposite counsel, has no application. It is restricted in its application to such political elections as were therein contemplated, and no further. It was never intended to trammel the discretion of the legislature in reference to matters committed exclusively to it.</p> <p>7. In response to the suggestion that there is no provision for a condemnation of the right of way for the fence, we submit that this is a contingency that may never arise. But the.board of supervisors would have ample power, under the' chapter on eminent domain.</p> <p>The statute is free from all objection as to its constitutionality.</p>

From the chancery court of Adams county. Hon. Claude Pintard, Chancellor. Appellant, the Natchez, Jackson & Columbus Railroad Company, filed this bill against James W. Lambert, sheriff and tax-collector of Adams county, to enjoin the collection of ad valorem taxes, assessed against it for the years 1891 and 1892.

From the circuit court of Lee county. IIon. Lock E. Houston, Judge. Gilbert & Bonner, partners in the practice of medicine, made application to the board of supervisors of Lee county for an allowance of. $55, as compensation for services in amputating the leg of a pauper.

From the chancery court of Yazoo county. JIon. H. C. Conn, Chancellor. The lands in controversy were originally owned by William Gartley, who died in 1856, leaving the following children: William F., Margaret G., Lilia, Julia and Eugene Gartley, and two grandchildren, William G. and Mary J. Snodgrass, children of a deceased daughter, Mary F. Gartley, who had married Geo. R. Snodgrass.

From the circuit court of'the first district of Hinds county. Hon. J. B. Chrism an, Judge. This action was brought in October, 1892, by Wirt Adams, state revenue agent, against Lorenzo Fragiacomo, the appellee, to recover the amount of the licenses which he should have paid thq, state, county and city as a retailer of intoxicating liquors in the city of Jackson, during the years 1891 and 1892.

From the chancery court of Webster county. Hon. Baxter McFarland, Chancellor. Appellant, Mrs. D. E. Edwards, exhibited this bill July'29, 1891, against William Hillier and J. W. Hays, seeking to cancel their claims to certain land, which the bill alleges are clouds on her title.

From the circuit court of Lauderdale county. Hon. S. H. Terral,-Judge. Appellant, the Meridian Fair & Exposition Association, at its exhibition in 1890, had contracted with one Fisk to make a number of balloon ascensions for the entertainment of its visitors. In order to have what is called a race, it was necessary to have two balloons, which Fisk was to furnish.

From the chancery court of Lauderdale county. Hon. W. T. Houston, Chancellor. Appellee, Julia M. Walker, was, prior to 1874, the owner of an undivided one-eighth interest in a tract of land in Lauderdale county, containing 720 acres, which was divided» by partition proceedings in the chancery court of said county, between herself and her brothers' and sisters, the other owners, in 1874, while she was a minor.

<p>Appeabaptce. Form of plea. Effect. Judgment.</p> <p>Where an appellant claims that a plea (which is someAvhat ambiguous in form) was intended only as an appearance for a co-defendant, if the plea as filed would have been sufficient to prevent a judgment by default against appellant, it will be treated as an appearance for him, and a • judgment for plaintiff based thereon Avill be sustained.</p>

From the chancery court of Quitman county. Hon. W. R. Trigg, Chancellor. From a decree sustaining a demurrer arid dismissing her bill complainant appeals. The facts are stated in the opinion.

From the circuit court of the second district of Yalobusha county. Hon. James T. Fant, Judge. On July 23, 1891, appellee, a citizen of the state of Tennessee, brought two suits in the court below against the Phoenix Insurance Company, one on a policy of insurance issued by that company January 30,1890, and the other on a policy issued by it September,,20, 1890, both-covering a stock of' goods owned by appellee, at Grenada, Miss., which was destroyed by fire, January 13, 1891.

From the chancery court of Madison county. Hon. H. C. Conn, Chancellor. W. L. Dinkins, a merchant, failed in business and made a general assignment of his effects, preferring certain creditors. Appellant, an unpreferred creditor, filed the bill in this case to set aside the assignment and subject the property, claiming that the assignment was fraudulent and void because of the preference of a certain usurious debt.

From the circuit court of Sunflower county. Hon. E. W. Williamson, Judge. On April 15, 1892, appellants, Goodbar, White & Co., filed with a justice a note given them by appellee, J. P. Owen, for $188.07, payable April 1.

From the chancery court of Quitman county. IIon. W. B. Trigg, Chancellor. The lauds in controversy, situated in Quitman county, were sold to the liquidating levee commissioners in 1868, for nonpayment of levee taxes, and appellees claim under this sale. They were again sold to the liquidating levee commissioners in 1869. But the court finds from the record that R. J. Love, the original owner, redeemed the lands from both of these sales. Notwithstanding this, however, Gr.

From the chancery court of Coahoma county. Hon. W. R. Trigg, Chancellor. On January 31, 1883, appellee, Mrs. Sharpe, then'Ella M. Riddick, executed a trust-deed on her plantation, containing 672 acres of land, in Coahoma county, Miss., to one Sherwood, as trustee, to secure a debt to the American Mortgage Company, of Scotland, amounting to $2,000, payable December 1, 1887, with five interest coupon notes, payable, respectively, on December 1, 1883, and annually thereafter.

From the circuit court of Sunflower county. Hon. R. W. Williamson, Judge. The opiuiou contains a statement of the case. No matter what the debt consisted of, if it formed a part of the consideration of the lease, then it was rent, and the landlord had a lien for its collection. We know of no law which forbids one choosing the kind of security he may wish to give his creditor.

Brom the chancery court of Leflore county. Hon. W. JR.'Trigg, Chancellor. This is a bill filed by certain creditors of Harry Lee, a merchant, to set. aside a conveyance of his- entire stock of merchandise, his real estate and all other assets to the Delta Bank, of Greenwood.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. The facts are stated in the opinion. For a r.eport of this case on a former appeal, when only a. question of law was decided, see Archer v. Helm, 69 Miss., 780. 1. The court erred in admitting the testimony of Fontaine that he was employed by appellant, Archer, in conjunction with Toombs and others, to make the survey in 1888. This testimony was incompetent and misleading.

From the chancery court of Harrison county. Hon. W. T. Houston, Chancellor. On May 9, 1891, appellant, Hale, recovered judgment in a justice court against appellee, Hiern and wife, on a promissory note for $187.43. The judgment recites that it was rendered by consent. The constable’s return showed that process was served’ personally on the defendants.

Prom the circuit court of Washington county. I-Ion. R. W. Williamson, Judge.