Volume 71 — Mississippi Reports

<p>Appeal from a judgment of Hon. R. W. Williamson, Judge, rendered in vacation, at Greenwood, in Leflore county.</p> <p>This is a mandamus proceeding, on the relation of Walton Shields, district attorney, against J. R. Bew, registrar of Leflore county. The petition was filed September 21,1893, and alleges that, under § 1610, code 1892, the board of supervisors of Leflore county, on September 4, 1893, upon application of the requisite number of electors, ordered an election to be held October 14, 1893, to determine whether vinous or spirituous liquors should be sold in the county; that the defendant, J. R. Bew, registrar, has continued, since the order for said election was made, to register the electors of the county applying to him for registration; that said electors so registered intend to vote in the said local option election, and are being registered for that purpose; that, in the registration of persons within four months of the election, the registrar is acting in violation of law; that he has registered and is registering the names of various persons who have not paid all taxes legally required of them for the two years next preceding registration, and that these will also attempt to vote in said local option election. The prayer of the petition is for a writ of mandamus, commanding the defendant to desist from the registration of all persons until after the said election, and to desist at all times from the registration of persons who have not paid their taxes as required by §3612, code 1892.</p> <p>The defendant answered the petition, admitting the allegation as to the order for the said local option election, and as to his having continued the registration of voters after the fourth day of September. He also admitted the registration of certain persons who had not paid their taxes for two years next preceding said registration, but averred that these persons had paid their taxes at the time of registration or shortly before. Pie also averred that no taxes had been assessed against any of these electors. He denied that he had registered any persons who, upon examination by him, were not duly qualified, and averred that he did not know what was the purpose of the electors in registering.</p> <p>The agreed statement of facts shows that the local option election was duly ordered; that the defendant, since the order, proceeded to register various persons as qualified electors; that he was continuing so to register them at the time of suit; that he had registered the names of divers persons who had not paid all taxes legally required of them, and which they had an opportunity to pay, for the two preceding years next before said registration, but averred that such persons had not been assessed, and that, on the day of registration, they had paid their taxes for the purpose of registering, and that said persons, so registered as aforesaid, intended to vote in said local option election. Judgment was entered, directing the issuance of the writ of mandamus, commanding the defendant to desist from the registration of all persons until after said local option election on October 14, 1893, and to desist entirely from the registration of persons who have not paid their taxes as required by § 3612, code 1892. From this judgment the defendant appealed.</p> <p>Section 251, constitution 1890, limits registration of electors to four months before every election at which they may offer to vote. The word “ election ” in the law of elections is limited to the choice of persons for political offices, and not to questions of local option, and the like. 6 Am. & Eng. Ene. L., p. 260. ' .</p> <p>Section 249 of the constitution makes registration a prerequisite for voting at all elections, and does not apply the four months limitation.</p> <p>Section 1612, code 1892, relating to dram-shops, provides that the election- shall be conducted in the same manner as other elections, so far as applicable. To hold that no one should vote at such an election unless registered four months beforehand, would cause such strange confusion in so many respects, that we are forced to adopt the definition of an election as set forth in the above authority. Otherwise, we would have a petition signed by a number of persons, putting the election machinery in motion, who would not be qualified electors under the four months limitation. .</p> <p>Again, suppose that an election fixed by the general law should take place within two or three months after the time fixed for a local option election, who can say what electors would be barred from registration for such general election by the four months limitation invoked, on account of the local option election ?</p> <p>Reason, if not the plain letter of the law, would seem to require that electors should not be deprived of their rights in order that a mere police regulation may be carried into effect by the voters in a particular territory.</p> <p>I respectfully request the court to consider these questions :</p> <p>1. Whether the registration of voters is to be suspended by reason of the fact that a local option election is ordered.</p> <p>2. Whether electors, in order to be entitled to vote at such election, must have registered four months prior thereto.</p> <p>In respect to the first point, my own view is that the regis-' tration should continue up to within four months preceding a regular election. The second point is doubtful. The solution of the question depends upon an interpretation of § 1612, code 1892. The constitution, § 251, clearly applies to elections contemplated by that instrument, and the same is true of the chapter on registration and elections. So that the question depends exclusively upon the construction of §1612 of the code, and this is respectfully submitted to the court.</p>

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The appellees are the owners of a two-story brick building in the city of Jackson, the lower story of 'which is arranged for a store, the upper story being divided into small rooms or offices. On the eighteenth day of J uly, 1892, they entered into a written contract with appellant by which he leased the lower story of the building for one year, beginning August 1, 1892.

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

From the circuit court of the first district of Hinds county. C. M. Williamson, Esq., Special Judge. Perry Cohea died, leaving an estate, consisting in part of lauds in the city of Jackson. He devised all of his estate, and there were three executors of his will. Two died and the other resigned. In 1872, W. B. Jelks was appointed administrator with the will annexed. He was a grandson of Cohea, and, as devisee, was entitled to an undivided one-fifteenth interest in the estate.

From the chancery court of Washington county. Hon. W. F. Trigg, Chancellor. The appellees, J. W. Tillman and J. F. Tillman, minors, by their mother and next friend, Amanda Tillman, filed the bill in this case to recover from the appellants, H. & C. Newman, two-thirds of the amount of a certain note collected by them from J. T. Manor.

From the chancery court of Warren county. Hon. Upton M. Youns, Chancellor. A decree was rendered in this case in the court below on May 13,1879, directing the sale of certain lands for partition. The lands were sold, pursuant thereto, July 7, and, on November 5, 1879, a decree was rendered, confirming the sale.

From the chancery court of Madisou county. Hon. H. O. Conn, Chancellor. John Hall, of Madison county, Mississippi, owned two plantations in said county — the Hollingsworth place and the Mhoon place. He became an invalid, and was finable to look after his business affairs. He had two invalid, unmarried daughters, who were dependent upon him for support.

From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. Appellant recovered judgment against one Almon. On November 8, 1892, execution thereunder was levied on two printing-presses as the property of said defendant. Thereupon, appellee, Q-. A. Wilson, interposed a claim for the property, and an issue was made up, which was, by agreement, tried by the court without a jury, and judgment was rendered for the claimant, from which this appeal is taken.

<p>From the chancery court of Sunflower county.</p> <p>Hon. W. R. Trigg, Chancellor.</p> <p>Appellee, Inez Cole, filed the bill in this case August 3, 1891, for partition of a large tract of land in Sunflower county. This land had formerly been owned by B. F. Martin, the grandfather of complainant, who, in 1866, made a fraudulent transfer of it to his wife, E. J. Martin. After-wards, in 1873, a portion of the land — 347 acres — was conveyed by said E. J. Martin and her husband to other parties, as stated in the opinion of the court. It is in respect to said 347 acres that the real controversy in this case arises. In 1890, after the death of his wife, B. E. Martin sold the remainder of the land to appellant, J. M. Goff. As the title was in E. J. Martin, then deceased, certain of her children and heirs who were of age, joined their father, B. E. Martin,, in a quitclaim deed to Goff, with the understanding that they were to receive the purchase-money, and they after-wards recovered the same from B. E. Martin, or his estate. Eor a report of that case, see Martin v. Tillman, 70 Miss., 614. Appellee, Inez Cole, a granddaughter of E. J. Martin, being a minor, did not join in the quitclaim deed, but filed the bill in this case against J. M. Goff for partition of all the land, alleging that as an heir of E. J. Martin, she was the real owner of an undivided one-eighth interest, and that the-defendant, Goff, owned seven-eighths. The bill further alleged that defendant, Goff', was in possession of, and claimed, the whole of said land under the deed from B. E. Martin, and that he denied that complainant had any title whatever.. It further alleged that the claim of the defendant cast a cloud on complainant’s title to an undivided one-eighth interest in the land, and that the defendant deprived complainant of the possession of her inteiest.</p> <p>The bill prayed for the removal of the cloud from her title, and that partition should be made of the land.</p> <p>The defendant, in his answer, denied the material allegations of the bill, except as to the fact of his possession of the land in controversy, and the heirship of complainant; denied complainant’s title, and denied that she was a tenant in common with him. The answer further averred that B. E. Martin acquired the laud in controversy in 1856, and continued to own it until 1890, when he conveyed it to defendant; that the arrangement under which the title was transferred to E. J. Martin was a scheme to defraud the creditors of B. E. Martin, and that E. J. Martin, being a party thereto, neither she nor her heirs could claim any benefit therefrom.</p> <p>Testimony was taken at length, and a decree was entered in favor of complainant, establishing her title to an undivided oue-eighth interest in all of the land, including the 347 acres conveyed away by B. F. Martin, and for partition. From this decree, the defendant appealed.</p> <p>The main contention of counsel for appellant is that com.plainant had failed to show any title as to the 347 acres. Further, it was contended that the decision of this court in Martin v. Tillman, 70 Miss., 614, wherein it was held that E. J. Martin acquired the land under the fraudulent transfer from her husband, was erroneous. But, as the court makes no reference to that question, and treats it as settled, it is not deemed necessary to notice it at length, or to make any further statement.</p> <p>The opinion contains such further statement of the case as is necessary, in order to understand the points decided.</p> <p>All the questions involved in this case, except one, were, I suppose, settled by this court in the case of Martin v. Tillman, 70 Miss., 614. I assume that it will be useless to i'e-argue the matter settled by that decision. But the court will pardon me for saying, most respectfully, that the decision, in my opinion, stands alone and unsupported by authority in holding that an estoppel in pais, without a grant, can be invoked by one who has not been misled by such conduct, and who is a mere volunteer.</p> <p>If that decision stands, then the only remaining question is, did the court err in decreeing partition of that part of the land to which the complainant showed no title. In a bill to remove clouds, complainant must show a perfect legal or equitable title in himself, and that there is invalidity in his adversary's title. Boyd v. Thornton, 13 Smed. & M., 338 ; 32 Miss., 268; 39 lb., 796; 44 lb., 654; 51 lb., 166; 52 lb., 824; Doiod v. Railway Co., 68 lb., 159.</p> <p>Defendant, who has not entered under a common claim of title, can defeat a partition suit by showing an outstanding title in a stranger to the suit. Cooper v. Fox, 67 Miss., 237.</p> <p>Goff entered under B. F. Martin, and complainant is not a co-tenant of his in this 347 acres of land. Black v. Washington, 65 Miss., 60.</p> <p>The effort to show an outstanding title as to a part of the land is answered by the case of Griffin v. Sheffield, 38 Miss., 359, where it is held that a purchaser in fee from the husband of land belonging to the wife is, after the termination of the husband’s life-estate, a tenant at sufferance of the wife, or of her heirs if she he dead. He cannot, therefore, without surrendering the possession thus acquired, purchase an outstanding title to defeat the right of the wife or her heirs. See also Bay v. Cochran, 24 Miss., 261.</p> <p>B. F. Martin could not have defeated the action brought by his wife’s heirs by setting up an outstanding title with which he did not connect himself; neither can his vendee do this.</p> <p>Furthermore, the evidence is clear that E. J. Martin during her life, and B. F. Martin, as tenant by the curtesy after her death, were in possession of the land all the time, and the title is perfected by limitation. Deeds were made in 1873. This possession inured to the benefit of complainant, as well as the other heirs of E. J. Martin.</p> <p>Considering this case settled by the decision in Martin v. Tillman, it is unnecessary to make any further review of the questions presented by the record.</p>

Erom the chancery court of Lauderdale county. TIon. W. T. Houston, Chancellor. Appellee, J. R. Phillips, filed this bill against the Eirst National Bank of Meridian, the Planters’ Warehouse Co.,. Inman & Co., M. T. Murphree and C. C. King.

From the circuit court of Washington county. Hon. 11. W. Williamson, Judge. In December, 1890, Henrietta Hirsh obtained a judgment against the Louisville, New Orleans & Texas Railway Company for $1,800, and an appeal was prosecuted therefrom by the railway company.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor. The case is stated in the opinion. The decree of the lower court cannot be sustained, unless the habendum clause of the deed be ignored entirely. This cannot be done. The whole instrument must be looked to, and effect given to all of its parts. The intention of the parties, if manifest, must control. Bawle on Covenants for Title, § 57.

Erom the circuit court of Noxubee county. Hon. S. H. Terral, Judge. Charles E. Levy, a judgment creditor of Moses Holberg, caused execution to be levied on two horses as the property of said debtor. Mrs. E. M. Holberg, the wife of Moses Holberg, interposed a claim to the horses, and the issue made thereon was tried, resulting in a verdict for the plaintiff.

From the circuit court of Rankin county. Hon. A. G-. Mayers, Judge. .Appellee, an unlettered negro, who lived at Brandon, purchased of appellant an excursion ticket from that place to Jackson and return. He was left by the passenger-train at Jackson, ancT, seeing a freight-train of appellant about ready to leave in the direction of Brandon, he arranged with the crew to take passage home thereon, agreeing to work in lieu of paying fare.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Appellee, a minor, by his next friend, brought this action to recover of the appellant for personal injuries. The first count of the declaration alleges that plaintiff, a passenger on one of defendant’s passenger-trains, in the state of Alabama, was assaulted by the porter of the train, and was knocked from the platform to the ground, receiving the injury complained of.

From the circuit court of the second district of Panola county. Hon. Eugene Johnson, Judge. The case is stated in the opinion. It was necessary to prove ownership as laid in the indictment. When, the proof developed that the house did not belong to S. E. Holcomb, the state might have amended, but did not do so. The variance is fatal. • 1 Am. Crim. Law, § 556; 66 Miss., 33; 68 lb., 348; 69 lb., 395.

<p>1.Mubder. Conviction for manslaughter. Appeal. Immaterial error.</p> <p>Where a trial for murder of a peace officer results in a conviction for manslaughter, this negatives malice or deliberate design to kill, and, on appeal, this court will pass as immaterial an alleged error in the admission of evidence to show such malice or design — as, that defendants had previously killed a man, and were seeking to avoid arrest for the homicide.</p> <p>2.Argument. Improper comments. Objection. Practice.</p> <p>Improper or unwarranted remarks by the prosecuting attorney in his closing argument, not amounting to an extreme and intolerable abuse of the privilege of advocacy, will not cause a reversal of a verdict of guilty, if passed unnoticed at the time, and only objected to on motion for a new trial.</p> <p>3. Jury. Murder trial. Improper influence. Heading nevjspaper reports of trial.</p> <p>Where, during a murder trial, members of the jury procure and read newspapers containing reports of the evidence, accompanied by comments of the reporter unfriendly to the defendant and calculated to excite prej udice against him, it will be ground for setting aside a verdict of guilty and granting a new trial.</p> <p>4. Same. Separation of jury. Effect on verdict.</p> <p>Proof that a juror separated from his fellows during the progress of a murder trial, and, alone, entered a store and called for paper and wrote a note, will require the setting aside of a verdict of guilty, in the absence of any explanation relieving such misconduct of suspicion.</p>

From the circuit court of Sunflower county. Hon. E. W. Williamson, Judge.

From the circuit court of 'Warren county. IIon. John D. Gtlland, Judge. Appellee, Broughton, was indicted for embezzlement.

From the circuit court of Lauderdale county. Hon. S. IT. Terral, Judge.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. On January 8, 1890, A. M. Stoner, a merchant in Macon,.

From the chancery court of Holmes county. Hon. T. 33. Graham, Oliancollor.

From the chancery court of Lauderdale county. Hon. W. T. Houston, Chancellor. The Hoyt & Bros. Co. and. other creditors of the Acme Lumber Company, a corporation, filed the bill in this case to cancel as fraudulent a trust-deed executed by said lumber company.. The deed had. been executed to secure the payment of certain bonds issued by the company, and the holders of the bonds were made parties defendant.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. Appellant, H. W. Foote, having purchased certain land at a sale for taxes, brought this action of unlawful detainer in the justice court against D. G. Dismukes and George B. Dismukes for the recovery of possession.

Prom the circuit court of Madison county. Hon. J. B. Chrism an, Judge.

From the circuit court of Bolivar county. Hon. R. W. Williamson, Judge. The facts are sufficiently stated in the opinion. The act of 1890 is a local law, applicable to Bolivar county alone. It does not attempt to deal with the fiscal affairs of the whole state. Its subjects are not- revised, consolidated or re-enacted in the code of 1892, nor are they repugnant thereto. It was therefore not repealed.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. The case is sufficiently stated in the opinion. In accepting new sureties in lieu of Ames, who had died, the board of supervisors obviously acted under § 413, code of 1880. The board was authorized to proceed under this section and substitute sureties instead of requiring a new bond. Removal of some of the sureties is made a cause for substitution.

From the circuit court of Noxubee county. IIon. 8. H. Terral, Judge. This is an action of unlawful detainer, brought April IT, 1893, by appellant, J. L. Wilkerson, against appellees, II. C. & M. A. Hudson, to recover certain land purchased by appellant at a sale for taxes March, 1892. The action was brought after the expiration of one year and within two years from the date of the sale for taxes, in conformity to § 538, code 1880.

<p>From the chancery court of Bolivar county.</p> <p>Hon. W. B. Trigg, Chancellor.</p> <p>The case is fully stated in the opinion.</p> <p>The supplementary petition to which the plea of res ad judicata is directed is in the very case in which the decree was rendered. There had been no final decree. Hope v. Hurt, 59 Miss., 174. There is no technical res adjudicata, and nothing is shown to create an equitable estoppel. No one was prejudiced by the failure sooner to call attention to the lien on the land. There had been no distribution,. No one had parted with any securities or changed his status on the faith of the supposed non-existence of such a lien, and matters in suit could not be disarranged by its recognition. Appellant has not slept on his rights more than the others concerned. The'receiver has been in possession for thirteen years, and no distribution has been made so far as the record shows.</p> <p>The creditor might either assert his lien, or receive his distributive share of the moneys of the estate. No law, however, required him to elect between these remedies. It does not appear that the question of lien was considered or adjudicated in the decree.</p> <p>The decree of November 8, 1880, fixed the rights of the creditors of Tobin & Co., giving the preference to two, and leaving all the others on the same footing. It directed a sale of the land for the purpose of paying debts. Nothing remained except for the receiver to report and be discharged. The claim here asserted is res adjudicata. If petitioner was dissatisfied, lie should have appealed or filed a bill of review. Griffin v. Railroad Co., 102 N. Y., 452; Thomas v. Phillips, 4 Smed. & M., 358; Agneio v. McMroy, 10 lb., 552; Burford v. Kersey, 48 Miss., 642; Gaines v. Kennedy, 53 lb., 103 ; Cocke v. Simmons, 57 lb., 183; Swan v. Smith, 58 lb., 875.</p>

From the circuit court of Attala county. Hon. C. H. Campbell, Judge. A writ of attachment was issued by the circuit clerk of Attala county, at the suit of appellant, the C. C. Kelly Banking Company, against Iiollingworth & Son, and was by tbe sheriff levied on the stock of goods of defendants.

From the circuit court of the second district of Yalobusha, county. Hon. Eugene Johnson, Judge. This is an action by W. R. Langdon against the Illinois Central Railroad Company for injury to a shipment of cattle made by him from Water Yalley, Miss., to New Orleans, La'. On the trial, the plaintiff, over defendant’s objection, introduced in evidence the accounts of sales of the cattle in New Orleans, and this is assigned for error.

From the circuit court of Noxubee county. IIon. S. Ii. Terral, Judge. On January 5, 1888, appellee, D. G. Farmer, who was engaged in building bridges for the county of Noxubee, obtained an advance of $240 from appellant, IT.

From the circuit court of Quitman county. Hon. R. W. Williamson, Judge. Action of unlawful entry and detainer, in which plaintiff relied upon a tax-title. The case was tried without a jury. Judgment for plaintiff; defendant appeals. The opinion contains a further statement of the case. When the clerk marked the deed canceled, and sent it out of his office before the expiration of the year, the deed lost its vitality. Code 1880, § 531.

From tlie circuit court of Montgomery county. Hon. C. H. Campbell, Judge. Held: a majority of the votes being cast in favor of the law, and that the board had declared it in force; that the law had not been put in force in Montgomery county, and that because of this it became the duty of Montgomery comity to unite with Carroll in jointly building the fence; that the board of supervisors of Montgomery county had…

From the circuit court of Lee county. Hon. Newnan Cayce, Judge. This was an action by C. D. Clarke, and Clarke & Clarke for the use of C. D. Clarke, against the Western Union Telegraph Company, to recover the statutory penalty for failure to correctly transmit two messages and for the charges paid for their transmission.

From the circuit court of the second district of Chickasaw county. Hon. Newnan Cayce, Judge. Appellant, R. W. Chandler, recovered a judgment .against J. B. and M. A. White, and, in March, 1882, caused a writ of garnishment to be served on the Mobile & Ohio Railroad Company.

Prom the chancery court of Lauderdale county. Hon. W. T. Houston, Chancellor. Appellant filed a bill against the appellee for a divorce. The defendant answered, denying the material allegations of the bill, and made her answer a cross-bill, alleging, as against the complaint, various grounds for a divorce. She prayed for alimony pendente lite, in a sum sufficient for her support, and an allowance for counsel fees and other expenses of the suit.

From the chancery court of Lauderdale county. Hon. W. T. Houston, Judge. The facts are stated in the opinion. The bill does not show a cause of action. It does not aver that the rent was improperly paid to either defendant. Liability is attempted to be imposed upon Mrs. Ragsdale’s estate, not by reason of any fraud, accident or mistake in paying the rent to her, but because of inability of her representative to establish the want of authority of another to collect her rent.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. The opinion states the facts. It was error to refuse the application of the intervenors to require the plaintiffs to file a more certain declaration and a bill of particulars of their claim. The declaration as filed did not apprise them of the facts upon which they were to take issue. Soria v. Bank, 3 How. (Miss.), 46; Pipes v. Norton, 47 Miss., 61; Railroad Co. v. Provine, 61 1 b., 288.

From the circuit court of Noxubee county, on a change of venue from Kemper county. Hon. S. H. Terral, Judge.

<p>Prom the circuit court of Bankin county.</p> <p>Hon. A. Gr. Mayers, Judge.</p> <p>The facts are stated in the opinion.</p> <p>An unsworn report of the commissioners of the election was spread on the minutes of the board of supervisors at a special session, to which the board had adjourned at its previous meeting. There is no warrant in law for such a meeting. Wolfe v. Murphy, 60 Miss., 1. The acts of the board at such a meeting are nullities. Smith v. Nelson, 57 Miss., 138. It was necessary for the report to be verified by affidavits of the commissioners. This, when spread upon the minutes, is the only evidence'of the result. Code 1880, § 135. Bryant v. State, 65 Miss., 435; McDonald v. State, 68 lb., 728. It follows that there was no legal evidence that the local option law was in force, and defendant’s objection to the introduction of the report should have been sustained.</p> <p>The board of supervisors did not act originally on the report. It merely allowed it to be spread on the minutes. Even if the meeting was not authorized, the irregularity of the board would not invalidate the report. The report itself was correct, and it was spread on the minutes. The board of supervisors had no authority to examine and certify to the report. While the commissioners were required to do this, it was not required that they should report that the ■election was held at the proper places. They were to simply report the result.</p>

From the circuit court of Warren county. Hon. John H. Gilland, Judge. Appellant, a negro, was convicted of the rape of a negro girl eleven years of age. The indictment charged that the defendant, with force and arms, feloniously and violently committed the rape. A demurrer to the indictment, on the ground that it failed to aver that the crime was forcibly committed, was overruled.

From the circuit court of Attala county. ■ Hon. O. H. Campbell, Judge. Appellant, Ed Harper, was indicted jointly with another for the offense of burglary and larceny, the indictment charging that they feloniously and burglariously broke into a store-house and stole therefrom certain clothing, the house and clothing being the property of Kelly & Mills.

Prom the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. Appellants, G. -L. and T. P. Ware, were jointly indicted and convicted for the sale of intoxicating liquors in violation of the special act of Pebruary 29, 1888, prohibiting the-sale of intoxicating liquors in any quantity in supervisors’ district number one, Copiah county. (Laws, p. 170.) The case sufficiently appears from the opinion.

From the circuit court of Quitman county. £Lon. K. W. Williamson, Judge.

From the circuit court of Warren county. 1-Ion. John D. Gilland, Judge.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The facts illustrating the main question passed on by the court are sufficiently stated in the opinion. The evidence of the witnesses, Fitzhugh, Downing and Hester, the admission of which is held to be error, was to the effect that at various occasions about the time' of the fire they had seen sparks emitted from engines of the defendant, which flew over adjacent buildings.

From the circuit court of the first district of Panola county. Hon. Eugene Johnson, Judge. Action by R. J. H. Christian against the Illinois Central Railroad Company to recover for personal injuries sustained by him while a trespasser on its track.

From the circuit court of Lee county. IIon. Newnan Cayce, Judge. John A. Carter, trustee, for Carter Bros. & Co. and others, -brought this action of ejectment against Haywood Brandy to recover certain laud. Brandy being a mere tenant of J. H. Allen, the latter was admitted to defend.

From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. Appellees, J. Simon & Co., sued out an attachment against T. C. Garrott, and caused the same to be levied on a stock of merchandise and on certain mules, horses and other personal property, which Garrott had transferred to G. W. Holmes. The latter interposed his claim, and gave bond for the property.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Tire allegations of the declaration are stated in the opinion, and, since the court holds that they are sustained by the evidence, it is not necessary to set out the testimony. It may be proper, however, to state that plaintiff had only a life-estate in the residence in question. The court, at the request of plaintiff, instructed as follows : “ 1.

From the circuit court of the second district of Panola county. IIon. Eu&ene Johnson, Judge. Criminal prosecution against the Illinois Central Railroad Company, begun before a justice of the peace, for obstructing a highway in the town of Batesville. There was a conviction in the justice court, followed by an appeal to the circuit court, where the case was tried on an agreed statement of facts, and the defendant was again convicted; hence this appeal.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. R. A. Honea, claiming to be the real owner of certain land, filed this bill against Mrs. S. F. McAllister to cancel, as a cloud on his title, her claim thereto. Complainant and defendant claim title from a common source — Honea claiming under an execution sale of the land as the property of Mrs. M. E. Bnrkitt, and Mrs. McAllister claiming under a conveyance from Mrs. Bnrkitt.

From the chancery court of Washington county. Hon. W. R. Trigg, Chancellor. The case is stated in the opinion. The fact that the money was deposited to the credit of Griffin “as sheriff,” was notice that it was held in a fiduciary capacity, and that the deposit was unlawful. Shaw v. Spencer, 100 Mass., 382; Fisher v. Brown, 20 Am. St. R., 467; 52 N. Y., I;- 100 lb., 31; Shelton v. Laird, 68 Miss., 175. Here the bank had actual notice. See Armour v. Bank, 69 Miss., 700.

From tlie chancery court of Washington county. IIon. W. 11. Trigg, Chancellor. The Citizens’ Bank of Greenville, Miss., exhibited its bill against the Bank of Greenville and W. A. Pollock, its receiver, seeking to impress a trust on the assets of the latter bank for the amount of two bills of exchange. The facts out of which it is claimed a trust arose in favor of plaintiff are stated in the opinion.

Prom the circuit court of Monroe county. IIon. Newman Oayce, Judge. Appellee, H. L. Thayer, sued out an attachment before a justice of the peace against Vandiver and Trotter, makers, and W. P. Timberlake, indorser, of a promissory note for $150, the ground of attachment being non-residence of the defendants. Subsequently plaintiff dismissed the case as against Vandiver and Trotter.

<p>From the chancery court of Lauderdale county.</p> <p>IIon. W. T. Houston, Chancellor.</p> <p>L. A. Ragsdale, Sr., died in December, 1887, the owner of a very large estate, consisting chiefly of lands in and adjacent to the city of Meridian. By his will, after making a few bequests, he devised certain lots in Meridian, known as the compress property, to his son, Lewis A. Ragsdale, the appellant, and all the residue of his property he devised jointly and equally to said Lewis A. Ragsdale and a daughter, Mrs. Ella C. Coffee. Lewis A. Ragsdale was named as executor, and qualified as such. Soon afterwards, he formed the purpose of removing from the state, and entered into negotiations with J. C. Lloyd, Thomas II. "Woods, J". S. Solomon and others for the sale of his interest in all the estate which, had been devised to him by his father. These negotiations culminated in a written contract of sale, dated August 15, 1888, by. which L. A. Ragsdale agreed to sell, and Lloyd and his associates agreed to buy, Ragsdale’s interest in said lands, and also his interest in the unadministered assets of'his father’s estate. The price agreed to be paid was $255,675, payable partly in cash and partly in fixed installments. At the time said contract of sale was entered into, the number of acres contained in the several tracts of land bargained for was not known-with certainty, "nor had the titles been examined, and the contract of sale provided for examination of the titles and for the ascertainment of the exact quantity of land embraced in the tracts sold, and provided that, after this examination and verification, Ragsdale should execute a deed to Lloyd and his associates; but, notwithstanding these stipulations, which were intended to leave- no opening for controversy, the examination of the titles and the survey of the tracts sold were not completed at the time when it was agreed the deed should be executed. The deed was nevertheless executed in December, 1888, and recited that it was executed in pursuance of the previous contract of sale, and that the provisions thereof for the allowance of credit on the purchase-price for defects as to the title and quantity of the tract sold should govern the parties. Before the execution of the deed, Lloyd arid his associates were incorporated into the Mei’idian Land & Industrial Company, and the deed was executed to the corporation, which, it was agreed, should succeed to all the rights and assume all the obligations of the purchasers arising out of the contract.</p> <p>The land company entered into, possession of the lands thus purchased, and received from Ragsdale all the notes and accounts due to the estate, a half-interest in which it had purchased, and proceeded to sell the lands and to collect the debts due the estate. Payments were made to Ragsdale of the purchase-price from time to time, until all the installments were paid except about $50,000.</p> <p>Among other claims sold to the land company was one for about $14,000, which Lewis A. Ragsdale alleged to be due to him by J. S. Solomon for rent of the Planters’ Compress and Warehouse. Solomon denied his liability for this debt, and the contract of sale contained a provision for the determination and adjustment of this controversy, the nature of which is sufficiently stated in the opinion of the court.</p> <p>This bill was exhibited by the Meridian Laud & Industrial Company against Ragsdale and Solomon, alleging against the former that complainant was entitled to certain credits because of shortage in the quantity of certain tracts of land purchased, and because of alleged defects in the title of other tracts, and because of certain debts due the estate, which the bill alleged Ragsdale had collected and appropriated after-his sale thereof to complainant. The bill joins Solomon as co-defendant, in order that the defendant might interplead, and that the amount due on the rent claim might be determined, and credit allowed to complainant therefor, if if should be ascertained that Solomon was not liable therefor.</p> <p>Solomon answered the bill, and made his answer a cross-bill against his co-defendant, Ragsdale; and on the issue as to this indebtedness much testimony was taken, the nature of which and the questions of law arising therefrom being sufficiently stated in the opinion.</p> <p>It is not necessary to set out all the provisions of the contract and of the deed executed pursuant to it. Those which have given rise to the matters of controversy involved in this. suit, and which are passed on by the court, sufficiently appear from the opinion. The court below rendered a decree allowing complainant many of the credits claimed by it under the contract, but disallowing others, and from this decree Ragsdale has appealed. The land company has also assigned error to so much of the decree as disallowed credits which it claimed. This statement of the case, taken in connection with the opinion, will be sufficient for an understanding of the questions passed on by the court. ■</p> <p>1. It was error to decree allowance for forty aci’es of shortage in the three hundred and twenty acre tract, on the theory that the shortage embraced the most valuable part of the land. The estimate of the price was made without regard to the parcels previously sold. The purchasers knew that these sales had been made, and dealt only with what remained. Ragsdale did not make any warranty, either as to the quantity or the value of the parcels already sold. Lloyd, for himself and his associates, had looked over the land, and both supposed that the tract still unsold amounted to three hundred acres, and the price of all the land sold was fixed at a wholesale rate, and necessarily without any regard to what had been sold and was in the possession of others. Allowance should be made out of the average price agreed upon for the tract. The provision of the schedule relied upon as a basis of the contract has no application here. The extent of the provision that the shortage should be allowed for according to the prices in the schedule, is that the value of an average acre or lot agreed upon as a method of arriving at a trade for the whole of the land shall not be exceeded by the arbitrators, but may be less in determining credits. The values were placed in the schedule for this purpose.</p> <p>2. It was error to decree allowance of $4,500 for the defect in the title of a one-third interest in the land in section 7, .township 6, range 16. For twenty-five or thirty years the elder Ragsdale held this defective one-third interest undisturbed. His title ran back through successive sales during that time, and the irresistible inference is that deeds had been executed to prior owners which had not been recorded. The provisions for verifying titles merely meant that the titles were to be examined before the deed was made. It cannot mean that a good title was not to be received unless on record. The language of the contract is not that the title must be of record, but that the title must be verified by an examination of the record.</p> <p>It is sufficient if the title be good in law. A title good in law is just as good unrecorded as recorded, and just as good if acquired by other legal methods, such as the statute of limitation or prescription, as if by deed on record.</p> <p>It was erroneous to allow a credit for one thousand dollars for the lots and block in the south-west quarter of section 7, township 6, range 16. This tract had been cut into lots and blocks before the contract of sale. It is not contended that the purchasers were misled. They got as much as they contracted for. They only bought one hundred and sixty acres less twelve acres previously sold, and it is shown that all the lots and blocks previously sold did not exceed twelve acres.</p> <p>3. The only proof upon which the court decreed allowance for lot 5, block 38, was that the purchasers found it in the adverse possession of Dred Finley. The answer alleges that the title is good, and there is no proof that it is defective. This does not come Avithin the provisions of the contract as to defective titles.</p> <p>4. It was obviously error to decree any allowance for taxes •paid by the land company, except on lands which were shown to drop out of the contract.</p> <p>5. As to the claim of $14,000 against Solomon: If the deposition of Solomon be excluded, as it should be, there is no proof to warrant the allowance of this item. We submit that he Avas an incompetent witness to establish his account for repairs against the elder Ragsdale. (Counsel here discussecl the evidence at great length, to show that Solomon was the real lessee of the compress, and that Wolfe was merely nominally so, and that Solomon was therefore liable primarily for the rent; and, further, that he was estopped by the recitals of the contract and the deed, and by his own conduct in connection with the sale, to deny that he was liable for said rent.)</p> <p>There was an utter failure to show any liability on Solomon’s part for the $14,000 rent. He was not proven to have been the assignee of the term, and there was no undertaking on his part to pay the rent. He was not estopped by any thing in the contract to deny his liability. The body of the contract assigns a claim against Fred Wolfe, under the existing lease, to Fred Wolfe. Solomon’s name is not mentioned. The schedule refers to the claim as being against Solomon. If Solomon be estopped by the memorandum in the schedule, then Hagsdale must be held estopped by the recital in the body of the contract. The estoppels are balanced ; they offset each other.</p> <p>The value of the forty acres shortage in the three hundred-acre tract was properly determined. It is contended by appellant that it was intended that the value should be taken at the average value of the tract — so many acres at so much per acre. The fact that arbitrators were to be chosen to fix the value of the shortage shows that this was not intended. It was clearly shown that the parcels previously sold were from the most valuable parts of the tract. The real question before the arbitrators and before the court was, if the whole tract be worth so much per acre, what were the lands nearest the railroad and the city and well situated worth ? What is the relative value? The parties discussed the quantity of land previously sold, and made their estimate on the idea that the parcels sold embraced only twenty acres; but, to guard against mistake as to this, they provided that the money value of any mistake as to quantity should be fixed by arbitrators with reference to the price fixed by the schedule. The schedule recites a lumping value, not a price per acre. The proof shows that the lands previously sold created the shortage. They, in fact, embraced the shortage, and, in determining the value of the shortage, it was necessary to consider the value of what had been sold.</p> <p>The provision, in view of the words “ about, or thereabouts,” that no notice should be taken of a shortage not exceeding three or four acres, did not mean that three or four acres were to be deducted where the deficiency exceeded that amount. The deed provides that, in the event the variance was greater, it — that is, the whole variance — should be adjusted.</p> <p>The court properly decreed allowance for block 147 and two lots in block 141. The deed conveys the lauds by blocks. And while some lots and blocks are omitted in the deed, these are expressly mentioned and listed. It is not to be presumed that Ragsdale would specifically convey a block of land that he had sold; he does not pretend that a mistake was made. It being conceded that the title of the lots and block is defective, they fall under the provision as to defective titles, and are not within the exception of twelve acres.</p> <p>The land company was entitled to reconvey and take credit for the land to which it was shown that Ragsdale had not a perfect record title. The contract plainly contemplated that the purchasers should get a perfect record title, not one resting on the statute of limitations of dependent on extrinsic proof. The parties had a right to make such a stipulation, and the intent is unmistakable. The fact that the purchasers reserved the right to reconvey by quitclaim, shows an intent to get a perfect record title. The provision in the deed for a reconveyance was a modification of that in the contract for arbitration as to the money value of defects in title.</p> <p>1. It is indisputable that Wolfe, not Solomon, was the lessee. The lease itself show's this, and there is no proof that Wolfe ever assigned the lease to Solomon. On the contrary, it is shown that in August, 1888, when the contract of sale was made, Wolfe was still lessee of the compress, and still held possession as such. To hold Solomon liable for the fourteen thousand dollars claimed for rent, it was necessary for complainant to show that he was either the lessee of the compress or that he was the assignee of the lease during the time the claim for rent accrued. See 1 Wood’s Landlord & Tenant, 145, 720, 721, 727; Taylor’s Landlord & Ténant, §426; Harris v. Frank, 52 Miss., 155; Doty v. Heth, lb., 530; Taylor v. Nelson, 54 lb., 524; Patty v. Bogle, 59 lb., 491.</p> <p>The witnesses introduced to prove the liability of Solomon failed to show that he was either lessee or assignee of the lease. The extent of the proof was that when Ragsdale sold to the land company he proposed to sell this claim for rent, stating that Solomon, the agent and manager for Wolfe, claimed that it had been paid, or that there were offsets against it. Solomon denied in his answer that he was either lessee or assignee, and the proof having failed to establish that he was, the bill should have been dismissed as to him.</p> <p>2. Conceding, however, that Solomon was lessee, or the assignee of the lease, we submit that he has proved a set-offfor more than the amount of the rent. We submit that the evidence amply supports the claim for repairs. The land company took this claim with full notice that offsets were existing against it. It is not entitled to the favor and protection accorded to purchasers without notice. The agreement between Ragsdale, the lessor, and Wolfe, the lessee, was in substance a payment for the rent for the term in advance. The advances made by Wolfe, and the repairs agreed to be made, more than exceeded the whole rent up to August 15, 1888. A tenant who has paid rent in advance is not liable for the same to the grantee of the lessor who has no notice of sncli payment, but such payments are treated rather as advances on account of rent than as actual payment of rent, and constitute an equitable defense to an action for the rent on account of which it was advanced. 2 Wood’s Landlord & Tenant, 1026; Taylor’s Landlord & Tenant, § 447.</p> <p>3. It cannot be successfully contended that Solomon was estopped to deuy his liability for the rent claim. He had given notice at the time of the sale that the debt would be contested, and, in the contract, the claim is mentioned as one due under the existing lease to Wolfe. It was not until the deed was executed in December following that the claim is mentioned as one against Solomon. We have, then, the case of an estoppel against an estoppel, which sets the matters at large. 2 Am. & Eng. Ene. of L., 25. Estoppels must be certain. It cannot be said that there is certainty where the claim is referred to in one case as against Solomon, and in another as arising under the existing lease to AYolfe, and where there is no evidence that Wolfe had ever assigned the lease. The case lacks the essential elements of estoppel. See Ttirnipseed v. Hudson, 50 Miss., 429; Sulphine v. Dunbar, 55 lb., 255; Staton v. Bryant, 55 lb., 261.</p> <p>4. Solomon was a competent witness to establish the set-off. He did not acquire the set-off until October 8, 1888, long after the death of the elder Ragsdale, the lessor. Before that he was a competent witness for Wolfe to establish the set-off, and he did not cease to be competent because he acquired the claim from Wolfe. The suit was not against Ragsdale as executor or administrator, but against him individually. Even Wolfe, if he had been sued, would have been competent, but in any view of it Solomon was competent. Dove v. Stone, 56 Miss., 449; Cole v. Gardner, 67 lb., 670.</p>

From the chancery court of Holmes county. Hon. T. B. Graham, Chancellor. On December 10, 1891, Mary T. Goodman borrowed from the Durant Building & Loan Association $2,362.50, and gave her note for $3,500, with interest thereon at the rate of ten per cent, per annum, the interest payable monthly on or before the fifteenth day of each month. The difference between the amount received by her and that for which the note was given represented the premium bid by her for the money.

From the circuit court of Tunica county. TIon. R. W. Williamson, Judge. Action by appellants against appellee on a fire insurance policy covering a stock of merchandise in a certain building in the town of Robinsonville, Tunica county, Miss.

From the chancery court- of Lauderdale county. Hon. W. T. Houston, Chancellor. Appellants, complainants in the court below, are creditors of the firm of John T. Ball & Co., which was composed of John T. Ball and his sou, A. II. Ball. John T. Ball died in 1890, and A. H. Ball, the surviving partner, was appointed administrator of his estate. Publication was duly made for creditors of the estate to present and register their claims.

From the chancery court of Lauderdale county. Hon. W. T. Houston, Chancellor. In May, 1885, John M. Niolon and wife executed a deed •of trust, conveying certain property in the city of Meridian to secure the payment of their promissory note to Hugh McDonald for $1,787.50, due January 1, 1887.

From the circuit court of Sunflower county. Eon. R. W. Williamson, Judge. Action by L. & N. Wilczinski to recover of Joe Stockner on an open account for goods sold. Plaintiffs had judgment, both in the justice coui’t and the circuit court, and defendant appeals. The fifth instruction, the giving of which for plaintiffs the court holds to be erroneous, is as follows: “ 5.

From the circuit court of Choctaw county. Hon. C. H. Campbell, Judge. Seward Bros., having a judgment against C. C. Lewis, caused an execution thereon to be levied on certain cross-ties, the officer taking them into his possession. Thereupon, Blnmenfeld & Fried propounded their claim, and tendered a •claimant’s bond, and the ties were delivered to them.

From the circuit court of the second district of Marion county. IIon. S. II. Terral, Judge. John Thomas, a colored man, was eoiivicted of the murder of John McClendon, and sentenced to the penitentiary for life.

From the chancery court of Coahoma county., 1 Ion. W. E. Trigg, Chancellor. On January 17, 1891,'appellees executed to Caldwell & Judah a trust-deed on a plantation, to secure an indebtedness of $3,500, evidenced by notes payable in installments. It was stipulated in the deed that, if any of the notes were not paid at maturity, the holder could declare the entire indebtedness due, and the trustee was authorized to sell the land for satisfaction of the same.

From tbe chancery court of the first district of Coahoma county. Hon. W. 1L Trigg, Chancellor. The original bill in this case was filed by Thomas H. Allen against B. B. Waddell to enforce a lien for the price of certain land.

Erom the circuit court of Monroe county. Hon. Newnan Cayce, Judge.

From the circuit court of the first district of Hinds county. IIon. J. B. Chuisman, Judge. The case is stated in the opinion. 1. It was error to exclude the unsigned memorandum of liabilities. It was an admission that the debts were corporate liabilities. Besides, it formed the basis of the negotiation. 2. The real inquiry was, what was the margin of value between the corporate assets and liabilities?

Prom the circuit court of. the second district of Panola uounty. Hon. Eugene Johnson, Judge. Appellant, Pearson, an unmarried man and practicing lawyer, residing in the town of Batesville, Miss., occupied alone the back room of his law-office as a sleeping apartment, taking his meals at a hotel. He owned a house and lot about ■one hundred and twenty-five feet from his office, occupied by his aged and dependent grandfather, whom he supported.

Prom the circuit court of Leflore county. Hon. R. W. Williamson, Judge. The Delta Bank sued P. S. Joiner in the court below. The defendant died after the suit was instituted. The record is silent as to whether he was ever served with process. On the thirteenth day of July, 1892, during a term of coui’t, the cause was revived in the name of the administrator of his estate, and a summons was issued for the administrator, returnable instanter.

From the circuit court of Tunica county. Hon. R. W. Williamson, Judge. The opinion sufficiently states the case. 1. There was a complete accord and satisfaction. Failure to pay the money resulted from a judgment against the defendant as garnishee. The judgment must be taken as the performance of the accord. In no event could the money have gone to the plaintiff after such garnishment. The defendant carried out the contract in the only manner allowed by law.

From the circuit court of Clarke county. Hon. S. II. Terral, Judge. On December 7, 1891, Threefoot Bros. & Co. sued out an attachment against W. II. Whittle, and caused the writ to be-levied on a stock of merchandise. A claim was interposed by A. Ii. Wright and W. T. Scott, who gave bond as claimants and took possession of the goods.

<p>From the circuit court of tlie second district of Coahoma county.</p> <p>Hon. R. W. Williamson, Judge.</p> <p>Replevin by H. T. Ladd, trustee, against W. A. Alcorn, Sr., for a horse. Plaintiff claimed' under a trust-deed executed by one Sajde to secure an indebtedness to William Black & Co. The deed of trust was recorded in Yalobusha county, where the beneficiaries resided, and where the horse was. Subsequently, Sayle resorted to a raffle in order to dispose of the horse, and, at the raffle, which took place in Yalobusha county, Alcorn, who had purchased a chance, was the winner. The horse was thereupon removed to Tallahatchie county, where it was delivered to Alcorn, and by him removed to Coahoma county, where he resided. The deed of trust was not recorded in Tallahatchie county, or in Coahoma county until more than twelve months after the removal to that county of the horse. Alcorn having refused to deliver the horse when demanded, the trustee, Ladd, instituted this action of replevin.</p> <p>On the trial, objection was made by the defendant to the sufficiency of the certificate of acknowledgment of the trust-deed, which was as follows :</p> <p>“ State oe Mississippi, ] Before the undersigned, mayor,.</p> <p>Yalobusha County. / etc., of said county, personally appeared the within-named I. T. Sayle, party to the foregoing instrument, whose name appears thereto, and acknowledged that he signed and delivered the same on the day and year therein mentioned, as his act and deed and for the purposes therein contained. Given under my hand, this tenth day of June, 1889. John M. Moore,</p> <p>“Mayor and ex officio J. P.”</p> <p>There was testimony on the part of the defendant to show that the beneficiaries in the trust-deed knew that the raffle would take place, and consented to this method of disposing of the horse, but this was denied by them, and the testimony on this point was conflicting. The trial resulted in a peremptory instruction for defendant, and plaintiff appeals.</p> <p>The certificate of acknowledgment must show the official character of the person taking it, or this must appear by additions or abbreviations attached to the signature. Russ v. Wingate, 30 Miss., 440. There is no such officer as mayor of a county, and whether we look to the body of the certificate or to the signature, we find no reference to any officer, except mayor of a county.</p>

From the circuit court of Lowndes county. IIon. Lock E. Houston, Judge, presided at the first trial, and IIon. Newnan Cayce at the last. Claimant’s issue between appellee, the Standard Oil Company, and S. B. Johnston, to try the title to a horse levied on under an execution iu favor of said company against one Brown. Appellee had a judgment in - the • justice court against said Brown, rendered July 9,1891, for $161.75.

From the circuit court of the first district of Yalobusha county. Hon. Eugene Johnson, Judge. Action by Daniel Turner against the Illinois Central Railroad Co. to recover for personal injuries. Plaintiff had judgment for $1,500. Motion for new ti’ial overruled. Defendant appeals.

Erom the circuit court of Copiah county. Hon. J. B. Chrisman, Judge.

From the circuit court of Lowndes county. Hon. Newnan Cayoe, Judge. Claude Blewett executed to appellants, Morgan, Robertson & Co., a trust-deed on certain lands, as set forth in the opinion. This trust-deed was foreclosed, and appellants became the purchasers, as agreed, and instituted this action of ejectment against appellee, Thomas Gr. Blewett, Sr., to recover possession of the lands.

From the chancery court of Clay county. Hon. Baxter McFarland, Chancellor. The appellee, O. C. Brothers, Jr., filed this bill to confirm a tax-title acquired by him at a sale on the first Monday of March, 1893, for the taxes of 1892.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The facts are stated in the opinion. 1. Chapter 116, code 1892, entitled “ Revenue,” is part of an entire code, adopted and approved by a single act, and must be construed with § 4, which saves all existing rights of action.

From tlie chancery; court of Grenada county. Hon. B. T. Kimbrough, Chancellor. Filed a very lengthy brief, discussing the various matters involved in the appeal and cross-appeal, as to the questions ■decided by the court, making the following points : The county treasurer’s general bond was not a security for school-funds. State v. Mayes, 54 Miss., 417; State v. Felton, 59 lb., 402; Lafayette Gounty v. Hall, 68 lb., 719.

From the circuit court of the second district of Coahoma county. Hon. B. W. Williamson, Judge. Appellant, Goyer Cold Storage Co., recovered a judgment against J. E. Blake, and caused execution thereon to be levied upon twenty shares of stock in the Clarksdale Co-operative Building & Loan Association. These shares had been subscribed for by Blake, who, until shortly before the execution was levied, had continued the owner thereof, and made all the required payments of dues.

From tlie chancery court of Lee county. Hon. Baxter McFarland being disqualified, W. L. Clayton, Esq., a member of the bar, was selected as special chancellor, and presided in this case. The question in this case is as to the right of appellee, M. E. Clarke, to recover on an account for legal services rendered appellant by the firm of Lacey & Clarke, attorneys, in 1884, which account had been transferred to appellee.

From the circuit court oi' Franklin county. Hon. W. P. Cassedy, Judge. Action for damages by appellee against the appellant for the alleged backing up of the waters of a stream on the lands of plaintiff, by the construction of the road-bed of the defendant.

From the chancery court of Jackson county. Hon. W. T. Houston, Chancellor. Appellee, Burton Goode, filed a bill against George W. Carlisle, the appellant, seeking to cancel a tax-title acquired by the latter, March 30,1892, alleging that the land was sold in March, 1891, for the taxes of 1890, and purchased by the state, and by the auditor of public accounts conveyed to defendant.

From the circuit coui’t of the first district of Chickasaw county.- IIon. Newnan Cayce, Judge. Mosely instituted an action for damages against Jamison for assault and battery, and agreed to give his attorney who brought the suit one-half the recovery for his services. He also agreed to pay the actual expenses incurred by the attorney while prosecuting the suit.

From the circuit court of Lafayette county. Hon. Eugene Johnson, Judge. Appellant was convicted of perjury, alleged to have been committed before the grand jury of Lafayette county.

From the circuit court of Lafayette county. Hon. Eu&bne Johnson, Judge. Appellant was convicted of assault and battery with intent to kill his wife, on circumstantial evidence, the substance of which, as found by the court from the record, is set out in the opinion. A motion for a new trial was made, upon the ground, among others, that the verdict was contrary to the evidence.

From the circuit court of the second district of Coahoma county. Hon. II. W. Williamson, Judge. The opinion states the case. If the appellant is required to pay a privilege tax, it will be virtually to tax a business not contemplated by the statute. Under sucli a rule, any landlord who buys that which is necessary to furnish to his tenants, would be liable to the tax.

<p>1. Murder. Conspiracy. Joint responsibility. Instruction.</p> <p>Where one of a sheriff’s posse is killed in an attempt to make an arrest of two persons, on a trial of one of them for murdc-, an instruction as to his responsibility for the acts of the other nol on trial is irrelevant, and should not be given, if it appear from all the evidence (h.it such other did not kill the deceased.</p> <p>2. Homicide. Preventing unlawful arrest. Grade of offense.</p> <p>One who kills another, nol in malice, but to prevent an unlawful arrest of himself by such other, is not guilty of murder.</p> <p>3. Same. Instructions. Weight of evidence. Case.</p> <p>Where one of a sheriff’s posse is killed while attempting to arrest accused and another, and, on the trial of accused for murder, it appears that there was no warrant for the arrest, and the evidence leaves it doubtful whether any felony had been committed by any one, or even charged on reasonable grounds, and the supposed felony was not committed in the officer’s presence, an instruction that if accused shot deceased to prevent being arrested he was guilty as charged, is erroneous. If it mean that the arrest was lawful under § 1375, code 1892, it is on the weight of evidence. If it mean that, notwithstanding the arrest was unlawful, the killing was murder, it is error, for such a homicide, if not in malice, is not murder.</p>

From the circuit court of the first district of Coahoma •county. Hon. B. W. Williamson, Judge. Appellant was indicted for the murder of Will Butts, the indictment being by a single count in the usual form.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. On December 3,1872, appellant, Josephine Sevier, was the owner of the land in controversy, and, jointly with her husband, executed a trust-deed thereof in the usual form to secure their joint note for $5f0 to W. S. Vestal for money borrowed at the time.

Prom the circuit court of Leflore county. Hon. Ii. W. Williamson, Judge. Attachment in the court below by Cohen against Gamble, sued out May 10,1893. The affidavit alleges that the defendant, Gamble, is indebted to plaintiff in the sum of $1,398.90. The grounds for the attachment, as alleged in the affidavit, are (1) that said defendant is a non-resident of this state ; (2) that he has removed, or is about to remove, himself or his property out of this state.

From the chancery court of the second district of Carroll county. Hon. T. B. Graham, Chancellor. The case is stated in the opinion. It is admitted that Nelms has a lien upon the crops of the subtenant, but, under the familiar doctrine of marshaling securities, equity will compel him to first exhaust the estate of the tenants. It is not denied that Hunson, one of the joint renters, made more than enough cotton to pay the rent.

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

From the circuit court of the first district of Coahoma county. Hon. E. W. Williamson, Judge. On December 17, 1888, W. F. Eozell, being the owner of a plantation in Coahoma county, Miss., sold and conveyed the same to Mrs. Maggie C. Maynard.

From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. Replevin by Waterman against Berry for the recovery of a lot of cotton. By consent, the case was tried without a jury. Judgment for plaintiff. Defendant appeals. The cotton in controversy was raised by one Cox, during the year 1892.

Erom the circuit court of Lee county. Hon. Newnan Cayce, Judge.

From the chancery court of the first district of Coahoma •county. Hon. W. B. Trigg, Chancellor.

From the circuit court of Coahoma county. Hon. B. W. Williamson, Judge. Appellee, Annie A. Alcorn, owned a plantation, which was rented by Milton Bush. This action was brought in a justice court by appellants, Chism Bros., against appellee and the tenant, Bush, on an open account for goods sold, amounting to $300, on which there was a credit of $100.

From tlie circuit court of the first district of Coahoma county. Hon. R. W. Williamson, Judge. The record in this case shows that the laborers or croppers, who had previously contracted with appellee for the year, were employed by the appellant about the fifth day of April, 1892. At that time the act of 1890 was in force. Laws, p. 69.

From the chancery court of Issaquena county. Hon. W. It. Trigg, Chancellor. The facts are stated in the opinion. A contract valid in the jurisdiction where made and to be performed, will be enforced by the courts of another jurisdiction, through comity, although by its laws the contract be void.

From the circuit court of Monroe county. IIon. Newnan Cayce, Judge. Held: it can be ignored by any applicant for license. Only the board of registrars can qualify an elector. If one be denied registration, he can appeal to the commissioners. -Code 1892, §§ 3623-3627. The hoard of supervisors can neither add to nor take from the list of registered voters. They cannot revise the list.

From the circuit court of Tunica county. Hon. R. W. Williamson, Judge. Appellants, Fly & Hobson, recovered before a justice of the peace a judgment against W. A. Spratlin, and caused execution thereon to be levied upon a county warrant for $110.50 owned by him.

From the circuit court of Leflore county. IIon. R. W. Williamson, Judge. Appellant, J. T. Terry, owned a plantation in Leflore county, known as the Terry place, and he had an interest in and controlled a plantation on the other side of the Tallahatchie river, known as the Sarah Mound place. There was .a private ferry between the two places.

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 for $618.85 on their debtor, T. O. Garrott, of Minter City, Miss., payable to their own order December 1, thereafter. It was accepted by Garrott, and appellant, G. W. Holmes, indorsed his name on the back thereof. Appellees brought this suit on the bill against Garrott as acceptor and Holmes as indorser.

From the circuit court of Montgomery county. ITon. C. IT. Campbell, Judge. Purnell & Grider, merchants at Winona, Miss., were the agents of the Studebaker Bros. Mfg. Co., under a written contract by which they were to sell wagons on commission, making remittances from time to time. They were to pay freight, taxes and all other expenses, and keep the property insured for the benefit of said company. As security, the legal title was reserved by the company.

From tbe circuit court of Sharkey county. Hon. John D. Q-illand, Judge. The case is stated in the opinion.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Action by the state revenue agent against the Postal Telegraph-Cable Company. The declaration contains two counts. The first seeks recovery of privilege taxes for the years 1888 and 1889, and the second count demands ad valorem taxes for the same years, based upon an assessment made by the revenue agent.

<p>From the circuit court of Lauderdale county.</p> <p>Hon. S. H. Terral, Judge.</p> <p>Action against S. I. Solomon, principal, and Joseph Baum and Louis Bosenbaum, sureties, for breach of the bond of Solomon, who was a retail liquor dealer. The alleged breach is that said Solomon sold intoxicating liquor to the husband of Mrs. Curtis, the informer, while her husband was intoxicated. The sale was made November 20, 1891. The suit was brought in July, 1892, returnable to the January term, 1893, and was tried at that term. The defendant, Solomon, was not present. The sureties made an application for a continuance, based upon their affidavit, alleging that he was sick and unable to be present; that they could not safely go to trial in his absence; that they had a meritorious defense, which could only be shown by Solomon; that Solomon was present at the time of the alleged sale, and would testify that no liquor was sold plaintiff’s husband while he was intoxicated ; that no other person was present except the clerk of defendant, who was then dead; that Solomon, the principal ..defendant, resided in Meridian, and desired to be present at the trial, and would be present at the next term, and that his presence was necessary to aid counsel in examining witnesses.</p> <p>In opposition to the application, it was shown that Mrs. Curtis, on whose information the suit was brought, was poor and had little children; that she resided at that time in Jackson, Miss., and would not be able to attend the next term of court. The motion was overruled, and defendant excepted. The further facts as to this are stated in the opinion.</p> <p>Among others, the following instruction was given for defendants: “ The jury are instructed that, unless the barkeeper knew, or had good reason to believe, that Curtis was drunk at the time of the sale, they must find for the defendants, which fact must be determined by the jury from the evidence.”</p> <p>The following instruction asked by defendants was refused : “ The court instructs the jury that intoxicated means drunk, and that, in order to find for the plaintiff, the jury must believe that the seller of the liquor to Curtis had good reason to believe, at the time of such sale, that he was intoxicated, and, unless the plaintiff has proven to the satisfaction of the jury tha,t Curtis, at the time he purchased the liquor, so acted or appeared in the presence of the party who sold him the liquor as to give him good reason to believe he was at the time intoxicated or drunk, they must find for the defendants.”</p> <p>1. Under the showing made, the continuance should have been granted, unless the reasons assigned were fabricated. A party has the constitutional right to be present and to be heard by himself as well as counsel. The absence of Solomon was calculated to prejudice the jury. His presence and aid might have brought about a different verdict. His absence operated as a pi’ejudice against his co-defendants. There was nothing which tended to show that such absence was in any respect their fault. The case was tried at the return-term. True it was not tried on the day it was first called. This was because of the absence of counsel when Solomon was then in court. There is nothing to show an imperative necessity for the trial at that term. The fact that Mrs. Curtis was poor, and could not be present at the hext term, was not a ground for refusing the continuance. We submit that manifest injustice was done by forcing the defendants to trial, and that it is a proper case for this court to interfere. 25 Miss., 121; Sellars v. Kelly, 45 lb., 323; Vanderburg v. Campbell, 641 b., 89 ; Porter v. State, 3 Lea (Tenn.), 496.</p> <p>2. The law is that the testimony must show that the'seller of the liquor knew, or had good reason to believe, that the person to whom he sold was intoxicated. Whitton v. State, 37 Miss., 379. Here there is no testimony whatever to show that the clerk, who it is alleged sold the liquor, knew Curtis, or had ever seen him before. The inquiry is submitted whether the testimony is sufficient to show that he knew, or had good reason to believe, the man was drunk.</p> <p>3. The court erred in the instructions for plaintiff. These authorized the jury to find for plaintiff, if the testimony showed merely that liquor was sold to Curtis while intoxicated. The testimony must go further, and show that the seller knew, or had good reason to believe, that the person was intoxicated. Whitton -v. State, supra. These instructions are in direct conflict with those given for defendants, to the effect that, although the jury may have been satisfied from the testimony that liquor was sold to Curtis while intoxicated, yet the plaintiff could not recover unless the seller knew, or had good reason to believe, that he was intoxicated. On the point as to giving erroneous and conflicting charges, see Railroad Co. v. Minor, 69 Miss., 710.</p> <p>4. The motion for a new trial should have been granted. The testimony showed that Gilbert, one of the jurors, was a cousin to Mrs. Curtis. He told the fact to two of the other jurors during the trial, but said it made no difference. He was seen talking to Mrs. Curtis just before he went into the jury-box. The absence of Solomon, his importance as a witness, the representations to the court in behalf of Mrs. Curtis against a continuance because of her poverty, etc., all this biased the jury against defendants. Add to this the fact that one of the jurors was her cousin, and it must appear that there was not a fair and impartial trial.</p> <p>Taking into consideration the whole record, we submit that the ends of justice require a reversal. We refer the court to the following additional authorities: 4 How., 122 ; 8 Smed. & M., 452; 32 Miss., 309; 35 lb., 506; 45 J5.,-683; 48 lb., 420.</p> <p>1. The trial judge had before him all the facts as to the continuance, and the refusal to grant the application was a matter within his sound discretion. The physician of Solomon would not state that he was too sick to attend the trial. It was shown that Solomon was not in the saloon at the time the liquor was sold, and hence his presence at the trial was not vitally important.</p> <p>2. The relationship between Mrs. Curtis and the juror, Gilbert, was so distant that the latter did not know what it was, and, besides, the jurors were not asked the question as to whether they were related to the parties. We understand the rule to be that unless the relationship is within the fourth degree, there is no disqualification.</p> <p>3. The verdict was fully sustained by the evidence. The court properly announced the rules of law in the instructions. If the law is that the bar-keeper must know, or have good reason to believe, that a person is drunk at the time the sale was made before a recovery can be had in a case like this, then that question was passed upon by the jury. The case against the defendants was overwhelming. It was even a stronger case than that of SchuUherr v. State, 68 Miss., 227, where a recovery was sustained.</p>

From the chancery court of Attala county. Hon. T. B. Graham, Chancellor. In January,-1893, a stock of goods of J. E. Browne, a merchant, was attached by B. B. Browne, his father, and by other creditors. This bill was thereupon exhibited by S. Hernsheim Bros. & Co. and other .creditors, seeking, under § 503, code 1892, to vacate said attachments as collusive and fraudulent, and subject the goods to complainants’ debts.

From tbe chancery court of Noxubee county. I-IoN: W. T. Houston, Chancellor of the second district, presided by interchange. In 1871, S. P. Fant died intestate, leaving as his heirs his widow and three minor children, Ida, Iley and S. P. Fant. With the exception of an insurance policy of $5,000 in favor of his heirs, he left no estate.

From the circuit court of Clarke county. Hon. S. H. Terral, Judge. The opinion states the case. As soon as bond was given and the writ of supersedeas issued, appellant was entitled to the property. The receivers no longer had the right to retain possession ; the decree appointing them was then vacated. Bisbee v. Hall, 3 Ohio, 449; JSldridge v. Chambers, 8 B. Monroe (Ky.), 411.

<p>From the chancery court of Lowndes county.</p> <p>Hon. T. B. Graham, Chancellor.</p> <p>The facts are stated in the opinion.</p>

From the chancery court of DeSoto county. Hon. B. T. Kimbrough, Chancellor. The appellant, J. D. Johnston, filed this bill to enjoin the prosecution by defendant, M. J. Stone, of three suits brought by him against complainant in the circuit court of DeSoto county. Briefly stated, the facts are as follows: In September, 1890, J. D. Johnston contracted to sell Stone certain land, and also the mules, horses and farming implements thereon.

From the chancery court of DeSoto comity. Hon. B. T. Kimbrough, Chancellor. In 1887 Thomas Fox conveyed certain land in trust to secure a debt of $4,000 due by him to appellee, Mrs. B. C. Miller. The land was occupied by-Fox as a homestead, and his wife, the appellant, Lizzie D. Fox, joined in the trust-deed.

Prom the chancery court of Quitman county. Hon. W. R. Trigg, Chancellor. Bill by appellee, Sue Banks, against appellants, J. R. Preston and W. C. Shackleford, to cancel, as a cloud on her title, a tax-title asserted by defendants. The land in controversy was sold to the state in March, 1880, and again in March, 1881, and purchased in 1887 from the state by appellant, Preston, who conveyed a half-interest therein to Shackle-ford. Decree for complainant, and defendants appeal.

<p>From the chancery court of Pontotoc county.</p> <p>IIon. Baxter McFarland, Chancellor.</p> <p>In 1885, appellees, Clark, Hood & Co., assignees of a judgment against W. A., J. G-. and J. M. Dozier, caused execution thereon to be levied upon certain lands as the property of J. M. Dozier. J. M. and J. G-. Dozier were also indebted to complainant, Clark, Hood & Co., in other sums, for which the latter brought suit and recovered judgments. The Doziers filed their bill to enjoin the sale of the lands levied upon under the judgment, and, J. M. Dozier having meantime conveyed the lands in controversy to his wife, Clark, Hood & Co. filed a bill against the judgment defendants and Louisa Dozier, the wife of said J. M. Dozier, to set aside the conveyance,, alleging that it was made for the purpose of hindering, delaying and defrauding creditors. These several matters of controversy culminated in a written agreement of compromise, pursuant to which J. M. and J. G-. Dozier and Louisa Dozier promised to pay Clark, Hood & Co. $3,500 in full satisfaction of all their demands, and, for the security of this, they executed their joint promissory notes, payable in installments, and also executed a deed of trust on the lands in controversy, which had been conveyed to Mrs. Dozier. It was further agreed that judgments and decrees should be rendered in favor of Clark, Hood & Co. against the Doziers for the full amounts sued for, but these were to be considered as satisfied by the execution of the notes and trust-deeds provided for by the compromise agreement. It was further stipulated that none of the priorities equitably belonging to the debts in favor of Clark, Hood & Co. should, in case of future litigation, be waived or relinquished. The date o*f the compromise settlement, and of the notes and trust-deed executed in pursuance thereof, was August, 1886.</p> <p>Pending the suits above mentioned, and a few months before the said adjustment, J. M. and Louisa .Dozier executed to appellant, E. C. Bel], a deed of trust on the land in controversy, to secure an indebtedness due to Bell. Subsequently, before payment of the indebtedness to Clark, Hood & Co., and before the bar of the statute of limitations had attached, J. M. Dozier died. In December, 1892, the trustee in the said deed of trust executed by J. M. and Louisa Dozier in favor of Bell, advertised the land to be sold, whereupon Clark, Hood & Co. and Louisa Dozier filed this bill to enjoin the sale. The bill sets out the facts as above narrated, and, after asserting complainants’ priority, prays that the sale under the deed of trust in favor of Bell be enjoined, and the trust-deed canceled. It also prays for general relief.</p> <p>The defendant, Bell, demurred to the bill, on the ground, among others, that it did not show that complainants were entitled to any relief against defendant, and because it appeared that the note and trust-deed to Clark, Hood & Co. were barred by the statute of limitations. From a decree overruling the demurrer, defendant appeals.</p> <p>The fact that the debt, as to appellee, Louisa Dozier, was barred, did not invalidate the trust-deed jointly executed by her and her husband. The deed of trust was given to secure their joint note, and, so long as any part of the debt was not barred, the lien existed. If it be conceded that Bell’s trust-deed is junior to the liens of Clark, Hood & Co., its foreclosure could not prejudice them. It would merely pass an equity of redemption, which is an estate in the land. 3 Waite on Ac. & Def., 143; Buck v. Payne, 52 Miss., 271. Such a sale would not even cast a cloud on a prior lien or superior title. The demurrer should have been sustained.</p> <p>The indebtedness to complainants, Clark, Iiood & Co., was not barred when the bill was filed. It was stipulated in the compromise and settlement, that all liens existing by virtue of their judgments and creditor’s bill should remain in force. Nothing has ever been paid on the indebtedness, and no liens have been discharged or relinquished. There has merely been a change in the form of the indebtedness, and the statute of seven years, applicable to judgments and decrees, applies. A court of equity will look through the form to the substance, and keep alive the original securúty, if justice requires it. Howell v. Bush, 54 Miss., 437 ; Schumpert v. Dillard, 55 1 b.,' 348.</p> <p>All that the bill really claims, aside from the statute of limitations, is that the equitable rights of complainants are superior to those of the defendant, and if, in the specific prayer of the bill, complainants have prayed too much, under the general prayer, they should have such relief as, on the facts, they are entitled to. Story on Eq. PL, § 40; Byrne v. Taylor, 46 Miss., 95. On the general equities of the bill, see Bank v. West, 67 Miss., 729.</p>

From the circuit court of Leflore county. Hon. B. W. Williamson, Judge. The Delta Bank of Greenwood, Miss., as assignee of a policy of fire insurance, brought this action against the Home Insurance Company, of New York, to recover for loss of a stock of merchandise covered by the policy. The amount demanded was two thousand dollars, being the full amount of the policy.

From the circuit court of Monroe county. Hon. Newnan Caycb, Judge. Action by John H. Meek against the Gibson-Moore Manufaeturing Company, brought September 24,1891, to recover the sum of $309, alleged to be due for wages.

Prom the chancery court of Madison county. Hon. H. C. Conn, Chancellor. Bill by Madison county against appellee to recover certain sixteenth section school-lands, or, failing in this, to enforce upon it a lien for purchase-money. The land was leased in 1853 to 'W. Q-. Kearney for a term of ninety-nine years, and notes taken for the purchase-price, these, under the statute then in force, being a lien on the land.

Erom the chancery court of Erankliu county. Hon. Claude Pintard, Chancellor. The case appears in the opinion. The description is not void for uncertainty. McCready v. Lansdale, 58 Miss., 877 ; Tierney v. Brown, 65 lb., 563. The section was fractional and irregular in shape, and had not been subdivided by governmental survey into ordinary subdivisions. It could not,-then, be assessed according to the government survey.

From the chancery court of Harrison county. Hon. W. T. Houston, Chancellor. Mary J. Foster, the appellant, exhibited this bill against the Gulf Coast Canning Company and others, alleging that .she is the real owner of an interest in the lands in controversy ; that the defendants also assert a claim thereto, which is a cloud on her title, and which she prays to have canceled.

From the circuit court of Tallahatchie county. Hon. B. W. Williamson, Judge. Chaffe, Powell & West sued out an attachment in the court below against W. G. Peeples & Go., and the same was levied upon a crop of cotton in the field.

From the circuit court of Adams county. Hon. W. P. Cassedy, Judge. In January, 1889, appellee, Shields, became a member of the Natchez Building & Loan Association, subscribing for six shares of its capital stock in the ninth series.

Erom the chancery court of the first district of Coahoma county. Hon. W. R. Trigg, Chancellor. The opinion sufficiently states the case. An easement is a right to subject the land of one person to a particular service beneficial to the estate of another. The service must be certain, and must be exercised only to the extent and for the purpose of its creation.

From the circuit court of Lincoln county. Hon. J. B. Chrisman, Judge. Action begun in a justice court by appellee against the Norwood & Butterfield Co., a corporation, and C. S. Butter-field for $200, balance claimed to be due plaintiff on a contract for a reward.

Prom the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. On December 20, 1881, appellees sold and conveyed to appellants, by warranty deed, certain land in Lawrence county, Miss. In 1890 the purchasers learned that a part of the land belonged to the United States. There was testimony to show that they were never in actual possession of such part, but had paid taxes thereon several years.

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. The opinion states the case. When the attachment'writ was issued and the declaration filed, § 1522, code 1880, was complied with, and there was a pending suit, notwithstanding the defendant was not served with process. An attachment is a proceeding in rein and in personam combined.

<p>From the circuit court of Amite county.</p> <p>ILon. W. P. Oassedy, Judge.</p> <p>Replevin by Moyse & Sons against E. A. Cain for the recovery of certain horses, mules and other personal property. The defendant pleaded the general issue, with notice of damages. On the trial, testimony was offered showing that the property was owned by plaintiffs, and had been left with the defendant for use during the year 1892, for such use and the rent of certain land the defendant giving plaintiff's his note, which was introduced in evidence. The defendant offered to show that the property in controversy had been sold in January, 1892, under a trust-deed given by Cain to Moyse & Sons, at which sale it was agreed between them and defendant, Cain, that they should buy in the property at a reduced price, so that a balance of the secured debt would remain; due, to the end that Moyse & Sons could sue Barney, Johns- & Co., who had previously purchased from Cain a part of the property covered by the trust-deed; that the sale was made at a reduced price, under this arrangement and upon the agreement that Moyse & Sons would re-convey the property to defendant on payment of the debt remaining due after crediting the recovery from Barney, Johns & Co.,- that, having bought the property at a reduced price, they sued Barney, Johns & Co., and obtained judgment against them for the value of the property which they had bought. Plaintiffs objected to this testimony, and the objection was sustained; but, on cross-examination of Julius Moyse, one of the plaintiff's, certain facts as to this were brought out as stated in the opinion.</p> <p>Among other things, the defendant introduced an unrecorded deed, purporting to have been executed and acknowledged by plaintiffs, Moyse & Sons, conveying to him all the property in controversy, dated December 1, 1892. Plaintiffs offered testimony to show that the deed was a forgery, and there was a controversy in the evidence as to this.</p> <p>The second instruction asked by defendant, and refused, was to the effect that the burden of showing their right to recover the property was on the plaintiffs; that the defendant, having produced a deed of conveyance for the property, it devolved on plaintiffs to show by a preponderance of the evidence not only that the deed was not signed or acknowledged by them, but that they did not deliver the same, and that the burden of proof as to this was on the plaintiffs.</p> <p>1. The deed offered in evidence was perfectly good, being duly executed and acknowledged, and was in the possession of defendant. When attacked as a forgery, the affirmative of the issue, and the burden of proof, rested upon the plaintiffs. He who alleges fraud must prove it. Therefore it was error to refuse defendant’s second instruction.</p> <p>2. The court erred in refusing to admit defendant’s testimony to show the agreement made between the parties at the time of the purchase of the property. This testimony was admissible on two grounds: (1) To show that plaintiffs acquired the property by fraud, and in such case the court should not lend them aid in recovering the possession ; (2) it is admissible as being a strong circumstance to sustain the deed under which defendant claimed. Defendant offered to prove that plaintiffs had agreed at the beginning to execute this deed, and this agreement was contemporaneous with plaintiffs’ acquirement of title.</p> <p>No error was committed in the instructions. Those given for the defendant were more favorable than he was entitled to ask. The correct result was reached, and the judgment should be affirmed.</p>

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. Motion in supreme court. Action in the court below by Regina M. Jacobs against the New York Life Insurance Company.

From the circuit court of Copiah county. BLon. J. B. Chrisman, Judge. Action by Regina M. Jacobs against the New York Life .Insurance Company, a corporation domiciled in New York, but doing business in this state.

From the circuit court of Lincoln county. Hon. W. P. Cassedy, judge of the sixth district, presided, the Hon. J. B. Chrisman being disqualified by reason of relationship to a party in interest. Replevin for certain machinery, brought by appellee against appellant in a justice court October 22, 1891. The affidavit averred that the property was of the value of $175.

Appear from an order of the Hon. W. P. Cassedy, Judge, in a habeas corpus ease.

From the chancery court of Amite county. ITon. Claude Pintard, Chancellor. Decree in favor of complainants below. Defendant appeals. The opinion states the case. The complainants aver that they are the owners of the land in controversy, and this is denied by the answer. There is absolutely nothing in the record to show that they had any title to the land or any interest in it, and, therefore, the decree should have been in favor of the defendant.

From the circuit court of Tippah county. Hon. Eugene Johnson, Judge. Appellant was indicted for the murder of one Saunders, and was convicted of manslaughter. It appears that, early on the morning of the day of the killing, a younger brother of appellant reported that he had been cursed and shot at by some one who was unknown to him at the time. Thereupon this younger brother and O. C. Rucker, his father, and one Cy Rucker’, a negro, went in search of such person.

From the circuit court of Lafayette county. Hon. Eugene Johnson, Judge. Appellants have been convicted of the crime of unlawful cohabitation. The instruction for the state, the giving of which the court holds ivas reversible error, is as follows: “The court iustnicts the jury that the crime of unlawful cohabitation may be proven by circumstances.

From the chancery court of Lee county. Hon. Baxter McFarland, Chancellor, being disqualified by reason of relationship to parties in interest, did not preside in this cause. By agreement, E. H. Bristow, Esq., a member of the bar, presided as special chancellor.

Prom the circuit court of the first district of Marion county. IIon. S. II. Terral, Judge. Appellant was convicted of the murder of one Willie Buckley, and sentenced to be hanged. The opinion contains a sufficient statement of facts to illustrate the questions passed upon. 1. The court erred in quashing the writ of special venire, and also erred in ordering, of its own motion, a new venire. 2. It was also error to refuse the application for a change of venue.

From the circuit court of Webster county. Hon. C. H. Campbell, Judge. Action by appellant, the Bank of Winona, to recover of the appellees, M. T. Wofford, H. IT. Womack and A. P. Magness, on a promissory note. The note was made by defendants, payable to the order of themselves, and by them indorsed in blank, and delivered to the Webster Bank, in consideration of a loan of money.

From the circuit court of Wilkinson county. IIon. W. P. Cassedy, Judge. For the report of this case on a former appeal, see Richter v. Beaumont, 67 Miss., 285. The action was ejectment, brought by Mrs. B. Beaumont against George Richter. The defendant appeared and pleaded the general issue.

<p>1. Juror. Competency. Constitution 1890, 2? 244, 264. Ability to read.</p> <p>Since 2 264, constitution 1890, requires that a juror be able to read and write and also be a qualified elector, and since, to be an elector under 2 244, he must be able to read any section of the constitution, the words “ able to read,” in 2 264, must be held to mean able to read any section of the constitution.</p> <p>2. Same. Code 1892, 2 2354. Constitutionality.</p> <p>One may be duly registered, and yet not a qualified elector. Therefore 2 2354, code 1892, providing that a “ duly registered voter, able to read and write,” shall be competent as a juror, is not in accordance with 2264, constitution 1890, under which one to be competent as a juror must be a qualified elector.</p> <p>3. Same. Partiality. Fixed opinion.</p> <p>One who has heard parts of a former trial, who declares that he has a fixed and definite opinion, and will not say positively that he' could try the accused as though he had no opinion, is not a competent juror.</p> <p>4. Practice. Fxclusion of juror. Discretion.</p> <p>If any doubt arises as to the competency of a juror, he should be excluded. The court has the discretion to do this at any time before evidence is submitted.</p> <p>5. Same. Supreme court Multitudinous instructions. Immaterial errors.</p> <p>Where six, eight or ten instructions have been given for a party, this court will not'consider errors assigned for the refusal of others, unless it shall appear that the jury was not furnished a sufficient guide for the proper determination of the case. The trial court has power to limit the number of instructions within reasonable bounds, and this should be done, with proper caution to avoid injustice.</p> <p>6. Instruction. Testimony of deceased witness. Weight.</p> <p>An instruction which tells the jury that if it believes that the reported testimony of deceased witnesses on a former trial of the accused has been correctly proved, it should be given the same consideration as if the witnesses had testified before the jury, is objectionable.</p> <p>7. Evidence. Homicide. Acts and statements of deceased. Incompetency.</p> <p>On a murder trial, where it is shown that there was enmity between accused and deceased, and that the former knew the latter had made threats against him, and had purchased and carried a gun, testimony for the state as to what the deceased said or did shortly before the killing, not in the presence of the accused, as to selling or disposing of the gun, is incompetent.</p> <p>8. Same. Relations with ioife of deceased.</p> <p>On such trial, though it appears that enmity existed between the parties because of alleged improper relations between accused and the wife of deceased, evidence of the wife’s infidelity, of her mistreatment by her husband, and of what passed between them not in the presence of the accused, is incompetent.</p> <p>9. Same. Irrelevancy. Failure to object in time.</p> <p>But in such case, where the state offers testimony tending to show criminal relations between the accused and the wife of the deceased prior to the killing, and it is not objected to when introduced, but only after several witnesses are examined, it is too late for the defendant, after thus experimenting, to raise the objection on motion to exclude.</p>

From the chancery court of Lauderdale county. Hon. Sylvanus Evans, Chancellor. On Sunday, December 27,1891, the appellees presented to the chancellor, in vacation, a creditor’s bill against appellants, seeking to set aside as fraudulent certain conveyances, and to subject certain property to their debts. The bill prayed for the appointment of a receiver, and averred that an immediate appointment was necessary.

From the circuit court of Lafayette county. Hon. Eugene Johnson, Judge. By a decree of the chancery court of Lafayette, county, rendered March 3,1874, R. W. Black was appointed commissioner to sell certain land, of which appellee, J. L. Lewis, then a minor, owned a one-third interest.

From the circuit court of Alcorn county. Hon. Nbwnan Caxce, Judge. Action by appellant against the Memphis & Charleston Railroad Company for personal injuries sustained June 21, 1890. On the first trial, the court below refused a peremptory instruction for defendant, and plaintiff recovered a judgment, for $2,500. On appeal, this judgment was reversed, because of an erroneous instruction given at the instance of plaintiff.

From the circuit court of the second district of Yalobusha county. Hon. Euuene Johnson, Judge. Action by the Bank of Water Valley against the Southern Express Company to recover $1,048, damages for the alleged negligence of defendant in failing to promptly deliver a package containing a cheek for that amount.

From the circuit court of Warren county. Hon. John D. Gtlland, Judge.

Eróm the circuit court of the first district of Hinds county. IIon. J. B. Ci-irisman, Judge. Suit brought January 1, 1894, by appellant, for use of Yazoo-Mississippi Delta Levee District, against appellee for privilege tax imposed, by the act of 1886 (Laws, p. 100) on the business of operating a telegraph line for the years 1886, 1887 and 1888. Defendant pleaded the statutes of limitation of three and six years.

From the chancery court of Grenada county. Hon. B. T. Kimbrough, Chancellor. Bill by appellant against appellee to remove clouds and confirm a tax-title to certain lands in Grenada county. Complainant claimed through a tax-sale made to the state in 1876. The answer of defendant traversed the material allegations of the bill, denied complainant’s right to relief, and set up adverse possession of ten years.

From'the circuit court of the first district of Iiiuds county. Hon. J. JB. Ohrisman, Judge. Appellee, Sparks, was the owner of a car-load of horses, shipped under a special contract from Sau Antonio, Texas, to Jackson, Miss. By the contract, he was given transportation free, and he had the care of the horses.

From the chancery court of Harrison county. Hon. W. T. Houston, Chancellor. On June 29, 1892, appellees, Horae and Humphries, exhibited their bill iu the court below against appellants as heirs and devisees of JR. O. Saffold, deceased, alleging that on April 1,1867, during the life-time of said Saffold, he executed to complainants a deed conveying to them each a one-third interest in certain lands in Harrison county, Mississippi. The bill prayed for'partition.

From the circuit court of Washington county. Hon. H. W. Williamson, Judge. The Board of Mississippi Levee Commissioners brought this suit in the court below against the appellant, Griffin, and the sureties on his bond as tax-collector of Washington county, to recover money collected by said Griffin as taxes, and not paid over to the board as required by law.

From the circuit court of Leflore county. Hon. B. W. Williamson, Judge, being disqualified, by agreement W. T. Bush, Esq., a member of the bar, presided in the trial of this case. Weis & Goldstein sued out an attachment for rent against Bright and Connerley, which was levied upon sixteen bales of cotton. This cotton was claimed by J. Weis & Co., who made a claimant’s affidavit, and delivered, the same to the sheriff who had levied the attachment for rent.

<p>1. Description. Sufficiency. Uncertainty in exception.</p> <p>■V trusUdeed, mentioning the land and conveying the grantor’s “ crop of cotton, except four bales, which is reserved and agreed upon,” is not void as to the cotton. If there is uncertainty, it is as to the four bales excepted. McAllister v. Monea, ante, 256.</p> <p>2. Kepeevin. Suit by trustee. Property delivered to beneficiary.</p> <p>In replevin by a trustee for possession of property conveyed in a trust-deed, it is error to instruct that if the property was, before suit, delivered to the beneficiary, the action in the name of the trustee cannot be maintained. .</p> <p>3. Attachment for Kent. Contract of sale. Agreement to pay rent. Evidence.</p> <p>In replevin for property seized under attachment for rent, it is admissible to show, on behalf of the person attaching, that originally there was a contract for the sale of the premises, but that before other rights accrued this was modified by an agreement that the vendee, in default of paying the purchase-money, should pay rent.</p> <p>4. Same, Replevin. Burden of proof . Code 1892, ? 2531, declaratory.</p> <p>In replevin by a third person for property seized under attachment for rent, the burden is on plaintiff to show that he is entitled to the property. Section 2531, code 1892, is merely declaratory of the previously existing rule.</p> <p>5. Process. Persons specially deputised. Irregularity. Estoppel. Code 1880, $ 2200.</p> <p>Although §2200, code 1880, requires one specially deputized to execute process, forthwith to deliver the same, together with the property seized thereunder, to the sheriff or constable, a claimant who gives bond to and obtains from such person property levied upon by him, is estopped to take advantage of the irregularity in dealing with the process. State v. Depeder, 65 Miss., 26.</p>

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Appellant, a negro, was convicted of murder, and imprisoned in tlie penitentiary for life. Held: but under special statutes cited in the opinions. There is no statute giving such authority in this state, and, under the common law, it is submitted that this prosecution cannot be maintained. 4 Blackstone’s Com., 336. 2. It was error to admit the letter in evidence.

From the chancery court of Yalobusha county. IIon. B. T. Kimbrough, Chancellor. Bill by the Yocona Cotton Mills against O. W. Duke, tax-collector, to enjoin the collection of taxes assessed for 1892 on its factory in Water Valley, Mississippi.

From the cNcuit court of Leflore county. Hon. H. W. Williamson, Judge. The facts material to be considered are as follows: One Ullendorff leased and cultivated several plantations in Holmes and Leflore counties, and was the owner of the mules and horses and farming implements thereon. He also operated, in connection with them, a store.

From the chancery court of Lauderdale county. I-Ion. W. T. Houston, Chancellor. By §§ 4144, 4145, 4146, code 1892, it is made the duty of' boards of supervisors to cause the titles to sixteenth section school-lands to be investigated, and abstracts of the titles to be made, and to discover where any school-funds belonging to any township have been paid into the county treasury and mingled with other moneys.

From the circuit court of Panola county. Hon. Eugene Johnson, Judge. The case is stated iu the opinion. Section 1298, code 1892, is clearly a statute against the crime of seduction, one intended to protect womanly virtue. True the section uses the language “any woman,” etc., but it presupposes chastity. Its title shows this. Besides, it refers in its concluding pai’t- to “ the female seduced.” See Wilson v. State, 73 Ala., 527.

From tlie circuit court of Tunica county. IIon. B. W. Williamson, Judge. Appellant, A. B. Nelson, was the owner of certain land, and made a verbal sale to Nelson & Perry of oak timber growing thereon. The agreed price was one hundred dollars, but there is a conflict in the evidence as to whether the sale included all the oak timber on the land.

From the circuit court of Lee county. Hon. Newnan Cayce, Judge. Attachment for rent by appellants against appellee on a rent note made by the latter, payable to bearer, and delivered to one Davis, by whom it was transferred to appellants before maturity. Blanton filed an affidavit to try the legality of the distress, and, on the trial, plaintiffs proved that the cotton distrained was raised on the leased premises, and that they acquired the note in good faith and for value.

From the chaucery court of the first district of Coahoma •county. Hon. W. K,. Trigg, Chancellor. Bill for specific performance, or for damages for breach of an alleged contract to sell land. Decree for defendants. The opinion states the facts. It is not alleged by complainant in his pleadings that the. trade was to be for cash, or in what manner the $5 per acre was to be paid.

From the chancery court of Bolivar county. IIon. W. II. Trigg, Chancellor. Bill by Bolivar county against M. W. Coleman and others to confirm title to a sixteenth section of school-lands and to cancel the claim of defendants, who held under a lease for ninety-nine years executed by the president of the board of supervisors of said county on January 4, 1886.

From the chancery-court of Noxubee county. Hon. T. B. Graham, Chancellor. This bill was exhibited by B. G. Williams, an adult, and by the guardian of Benton, George G. and Andrew M. Williams, against Ella H. Patty, administratrix of the estate of Bobert C. Patty, deceased, late chancery clerk-of Noxubee county, and against the sureties on his official bond.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Appellee, the First National Bank of Meridian, recovered a judgment in attachment against the firm of Litchenstein & Metzger, and certain goods attached were sold by the sheriff. This is a motion by the bank against the sheriff and the sureties on his bond for failure to pay over the proceeds. To this motion the sheriff filed a plea, which was demurred to by the plaintiff.

<p>1. Ejectment. Mesne profits. Improvements. Judgment. Code 1892, '& 1673.</p> <p>The effect of 'i 1673, code 1892, is to require the jury to find in favor of a successful plaintiff in ejectment the amount of rents and profits, and, as against this, in favor of defendant, the value of improvements and taxes, in all cases where the declaration demands mesne profits, or where the defendant claims for improvements and taxes. The assertion of such claim by either party necessarily involves the whole matter of the accounting as provided for by said section.</p> <p>2. Sa me. Action for mesne profits. Former suit. Res judicata.</p> <p>Accordingly, although a plaintiff in ejectment fails to demand or prove mesne profits and rents, if the defendant pleads and is allowed for improvements (which, under the statute, are a charge on the land) and pays plaintiff the value of the land, without the improvements as assessed, the latter cannot afterwards resort to an independent action to recover of defendant mesne profits.</p>

Motion iii the supreme court. The appellants, Owens Snodgrass and others, filed a bill in the chancery court of Yazoo county against James H. Nolan, administrator, and others.

From the chancery court of Bolivar county. líos. W. B. Trigg, Chancellor. The opinion states the case. As the Fischer & Burnett Lumber Company had not complied with the law of Tennessee in reference to foreign corporations, its contracts in that state are illegal and invalid. See Lumber Go. v. Thomas, 92 Term., 587. As to the power of a state to impose terms upon a foreign corporation, sec Lascher v.. Stimson, 33 Atlantic Bep., 552; Cooper Mfg.

From the circuit court of Washington county. Hon. R. W- Williamson, Judge. Appellant, a constable, was indicted for extortion in office, by which, it was alleged, he obtained from Minerva Moore seven dollars. The language of the indictment is set forth in the opinion.

From the circuit court of Lee county. Hon. Newnan Oayce, Judge. The indictment against appellant contains two counts, one for forgery of a bank check on the First National Bank of Tupelo, Mississippi, purporting to have been signed by W. X. Wilson, the other count being for uttering such forged instrument. Both counts aver a felonious intent to injure .and defraud the said W. X. Wilson and the said bank.

From the circuit court of Choctaw county. Hon. C. H. Campbell, Judge. Appellant was convicted of perjury, and appeals. The facts appear in the opinion.

From tlie circuit court of Grenada county. Hon. C. H. Campbell, Judge. Appellant was convicted of burglary, principally upon the testimony of one Ed Wall, an accomplice. The testimony showed that appellant and Wall broke and entered a store, and took therefrom certain goods, including some white knit goods.

Erom the circuit court of Washington county. IIon. R. W. Williamson, Judge. The case is stated in the opinion. The court had discretion to grant the application. We submit there was an abuse of discretion. Hodge v. Darden, 51 Miss., 199 ; Pfeifer v. Chamberlain, 52 lb., 89. The garnishee was in court, and subject to its orders until discharged. O’Brien v. Liddell, 10 Smed. & M., 371. This case does not conflict with Boberts v. Barry, 42 Miss., 260.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Appellee, J. S. Solomon, sued out an attachment against Lichenstein & Metzger for $300, alleged to be due, and the writ was levied on certain merchandise.

From the circuit court of Copiah county. Hon. J. J3. Chrisman, Judge. In the town of Wesson there is a switch of the Illinois Central railroad, known as the “ horn switch,” situated, except where it crosses the streets of the town, wholly on the lands of the Mississippi Mills Company.

From the circuit court of Warren county. Hon. John D. Gtlland, Judge. Plaintiff, a minor nineteen years old, though not in the employ of the city of Vicksburg, had sometimes driven the hose-reel of the fire department to fires. He was at an engine-house when an alarm of fire, in a distant part of the city, was given.

From the chancery court of Wilkinson county. Hon. Claude Pintard, Chancellor. The land in controversy was owned by J. H. Jones, who sold it, in 1887, to Leak on credit, taking notes for the price, and expressly reserving a lien for their payment. The notes he assigned to Lindenmayer, who in turn transferred them to appellee, Wetlin, both transfers being prior to the adoption of the code of 1892.

From the circuit court of Leflore county. Hon. K,. W. Williamson, Judge. On May 11, 1893, appellee sued appellant in the court below on a judgment alleged to have been recovered by one-Wheeler against the defendant in the state of Louisiana, November 28, 1887. The declaration alleged that the judgment had been assigned to plaintiff, and was unpaid. No-copy or record of the judgment was filed with the declaration.

From the chancery court of Warren county. JIon. Claude Pintard, Chancellor. The bill in this case was filed August 14, 1892. It alleges that the several judgments against John A. and George M. Klein, therein mentioned, were rendered at different dates from 1883 to 1891.

From the circuit court of Jackson county. Hon. S. H. Terral, Judge. In 1892 the board of supervisors of Jackson county, acting under § 3929, code 1892, determined to work the public roads of district three of said county by contract. Accordingly, publication was made, and the contract was awarded to M. A. Dees, he being the lowest bidder, at $4.75 per capita for all persons liable to road duty in said district. He gave boud, and proceeded to work the roads.

From the circuit court of Bolivar county. IIon. R. W. Williamson, Judge. Action by ■ appellee against appellant on an insurance policy for $2,500, on a stock of merchandise, and a store building destroyed by fire. Defendant pleaded the general ■issue, and, among other things, gave notice of two special defenses, namely: 1. That assured procured additional insurance upon the property covered by the policy, without the written consent of defendant indorsed thereon. 2.

From tlie circuit court of Warren county. IIon. John E>. Gilland, Judge. Appellant is a marine insurance company, with its principal place of business in this country in the city of New York. Appellee, Cowan, is a cotton broker at Vicksburg, Miss. He had an open policy of insurance issued by appellant, covering the cotton he had in his business during the season of 1890-91. This policy authorized subsequent insurance, and provided for contribution in case of loss.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. Proceeding by appellee, begun December 13, 1890, to enforce a lien on certain cotton grown that year. Judgment for plaintiff'. Defendant appeals. The opinion contains a further statement of the case. Appellee was not entitled to a lien. Hester v. Allen, 52 Miss., 162.

From the circuit court of Bolivar county. IIon. B. W. Williamson, Judge. The case is stated in the opinion. Under § 1292, code 1880, no action is maintainable on a contract for the sale of lands or a lease for more than one year, unless the same is in writing, signed by the party to be bound, or by some person “thereunto lawfully authorized.” Section 1180 requires the authority to be in writing and acknowledged or proved.

From the circuit court of Lauderdale comity. IIon. S. II. Terral, Judge. Action by appellant against appellee for damages because of tlie alleged breach of a contract to purchase lumber. The contract in question is in writing, signed by the parties, and is the one referred to’in the opinion, bearing date December 2, 1892.

Erom the chancery court of Carroll county. Hon. T. B. Graham, Chancellor. Bill by Carroll county against Elisha Jones and others, under § 4147, code 1892, to cancel their claims to a part of a sixteenth section. The bill alleges that the land was by the school-trustees duly and legally leased in 1853 for a term of ninety-nine years; and that it is now held and claimed by the defendants in fee-simple under a bond for title and conveyance, both of which are of record.

From the circuit court of Lincoln county. Hon. J. B. Chrisman, Judge. On June 29, 1892, the board of supervisors of Lawrence county brought this action in the court below against appellant, Chamberlain, for cutting and removing trees from certain land formerly situated in Lawrence county, now in Lincoln county.

From the chancery court of Marshall county. Hon. B. T. Kimbrough, Chancellor. Section 117, code 1892, provides that the assignee or trustee in a general assignment for creditors, where the property exceeds in value $1,000, shall, within twenty-four hours after talcing possession, file a petition in the chancery court for the administration of the trust, making the assignor and all his creditors parties.

Frcm the circuit court of Wilkinson county. Hon. W. P. Cassedy, Judge. Replevin by appellant, trustee in a deed of trust, against appellee for a horse. The horse belonged to appellee, the wife of Willis Toliver, who, on January 22, 1891, gave-a trust-deed thereon to secure a debt to Rothschild & Bro., merchants. On July 6, 1891, he gave them another trust-deed, and on March 12, 1892, a third.

<p>From the circuit court of Monroe county.</p> <p>Hon. Newnan Cayce, Judge.</p> <p>W. B. Walker, administrator of H. B. Gillespie, having recovered a judgment against C. S. Bates, in November, 1890, and caused an execution to be levied on five mules and certain agricultural products as the property of the defendant, thereupon the appellant, J. M. Trice, interposed a claim, and gave- bond for the property. His affidavit alleges that the property “is not the property of Bates, but is the propei'ty of affiant.” The issue thus tendered was accepted by the plaintiff, who averred that the property was the property of Bates and liable to the execution, and the issue thus made proceeded to trial. The plaintiff proved that the property, when levied upon, was in the possession of Bates, who was claiming it as his own. Claimant, as a witness in his own behalf, testified that he had authorized Bates" to rent for him, for the year 1890, a certain farm, known as the French place; that Bates rented the place from French, and a misunderstanding arose between them, and, to prevent the removal of Bates from the place, Trice subrented the place from Bates, and then rented to Bates a certain part of the land; that, soon after this arrangement was made, Mrs. French, the owner of the land, instituted an action of unlawful detainer against Bates to recover possession of the land, which action was defended for Bates by Trice, and resulted finally in a judgment in favor of Bates; that Trice, during the year 1890, furnished Bates and his hands supplies, amounting, together with the sum due for rent, to $1,600; that two of the mules levied on had been sold by Trice to Bates on a credit, and that he had failed to pay for them, and that Trice had consented to take them back at an agreed price, and that they were accordingly surrendered to him, and that, during the year 1890, these mules had been merely rented to Bates. The claimant also introduced a trust-deed in his favor, executed in 1886 by Bates, covering the two mules above mentioned.</p> <p>There was testimony in behalf of the plaintiff to show declarations on the part of Trice that none of the property belonged to Bates; that it all belonged to him, Trice, and that Bates was merely hired fpr wages.</p> <p>After the claimant had introduced all his testimony, he asked leave to amend his affidavit so as to show that he claimed a lien for rent and supplies on the agricultural products which had-been levied upon. The objection by plaint-, iff' to this was overruled, and the affidavit amended accordingly. Thereupon plaintiff had Trice, the claimant, recalled for further cross-examination, and he was questioned at length in reference to his conflicting affidavits, the former having claimed all the property as owner and the latter merely under a lien. He was also further questioned in reference to statements which he had made in reference to the character of the claim which he had asserted to the property, and testimony was then adduced by plaintiff’ to contradict him in reference to such statements.</p> <p>The testimony having closed, plaintiff asked for a peremptory instruction in his favor as to all of the agricultural products, and as to the two mules embraced in the deed of trust. This instruction -the court refused to give. Among others given for the plaintiff, were the following: “6. The court charges the jury that if Trice only had a claim on the two mules, Alice and Hattie, by reason of an unsatisfied deed of trust on them, and did not own the mules, then the jury will find for the plaintiff as to said mules, Alice and Hattie, and assess their value at what the testimony shows them to be worth.” ,</p> <p>“7. The court charges the jury that although they believe from the testimony in the case that Bates turned the mules, Alice and Hattie, over to Trice, yet if Trice paid Bates nothing for them in any manner,- nor gave him any credit for them, such transfer cannot avail against the creditors of Bates, and the jury will find for the plaintiff, and assess the value of the mules at what they are shown by the testimony to be worth.”</p> <p>The first affidavit was only technically untrue. Trice’s paramount lien was sufficient ground to absorb the entire crop, and he was virtually the owner. The affidavit and the statements by Trice, if made to the effect that he was the owner, should not have been allowed to prejudice his case.</p> <p>Mere failure to enter credit for the agreed price of the mules returned by Bates to Trice amounts to nothing.</p> <p>The verdict is manifestly contrary to the evidence. ■O'Leary v. Burns, 53 Miss., 171.</p> <p>•Even if the mules were still the property of Bates, there was an unsatisfied deed of trust on them for more than they were worth. The plaintiff' had the right to sell Bates’ interest in them; but the measure of his recovery against the claimant would be the value of the mules in excess of the debt secured by the trust-deed. The verdict should not have been for more than the value of the equity of redemption. Butler v. Lee, 54 Miss., 476; Helm v. Gray, 59 76., 54.</p> <p>The same rule, it would seem, would apply to the agricultural products on which Trice had a landlord’s lien. Herron v. Bondurant 45 Miss., 683; McCarroll v. Alexander, 48 lb., 128.</p> <p>The verdict rendered could not have been obtained but for the disingenuous attack made on the claimant’s credibility. The wrong done is clearly discernible, and has met with proper condemnation by this court. See Mitchell v.. McDavitt, 70 Miss., 608.</p> <p>Section 4425, code 1892, enlarged § 1744, code 1880, so that now the equities of parties can be determined and adjusted on a claimant’s issue.</p> <p>The instructions increased the confusion into yvhich the-case had come. In one breath they announce that the issue was one of title, and in another that, as to the agricultural products, the question of lien was involved.</p> <p>Filed separate briefs, discussing the same assignments of' error, and, as to the matter decided, making the following points: The claimant should not have been allowed to file the amended affidavit. He does not claim to have been surprised by the proof. There was an unreasonable application of the statute as to amendments.</p> <p>Section 1774, code 1880, under which Trice filed his claim,., gave the remedy by claimant’s issue to those having or claiming title. Section 4425, code 1892, merely enlarged the class of those who might interpose and require the plaintiff to show title in the defendant. Surely, it was not intended that, where defendant has undisputed title, one having merely a lien shall prevent his enforcing his judgment, especially where the statute now gives a complete remedy forth e enforcement of the lien.</p> <p>The later statute cannot apply in this case, where the affidavit was filed and issue made up in 1890. It strikes at the right instead of merely modifying the remedy. Johnson v. Fletcher, 54 Miss., 631. It seems plain that plaintiff was entitled to sell the property subject to Trice’s lien, if he had any. He would be left to enforce his lien by the statutory remedy.</p> <p>Although the plaintiff is under the burden of showing; that the property is liable to his execution, as a condition precedent to his being required to show this, the complainant was compelled to make affidavit that he was owner of the property. Plaintiff is not required to prove a negative —that claimant’s claim is unfounded. Whenever plaintiff shows that the right of property is in the defendant, he has proven his case. A claimant who can make affidavit that he is owner, need not prove his claim. He can succeed by showing title in a third person. Boss v. Garey, 7 How., 47; Thornhill v. Gilmer, 4 Smed. & M., 153; Selser v. Ferriday, 13 1 h., 698; Ott v. Smith, 68 Miss., 773.</p> <p>The question is, who can bring up the issue? The answer is, one who can make a certain affidavit, namely, that he is owner of the property.</p> <p>The seventh instruction is correct. Certainly, if Trice paid nothing for the mules, and gave no credit for them in any manner, there was no consideration.</p>

From the circuit court of Oktibbeha county. IIon. Newnan Catce, Judge. Action by appellees against appellant, the Home Insui’ance Company, of New York, on a policy of fire insurance. The building insured, a store-house in West Point, Miss., was occupied, when the policy was issued, by a firm of merchants, tenants of insured, under a lease to expire September 1,1892.

Prom the chancery court of Jackson county. Hon. W. T. Houston, Chancellor. Bill by appellee against appellants to cancel a tax-title. Complainant claims to have the original title. That is, he claims under conveyances' reaching back to the United States.

From the circuit court of Clay county. J-Ion. C. H. Campbell, Judge. Appellee, J. S. Rush, was run over and permanently injured by defendant’s cars, which he was endeavoring to-uncouple, and brings this action to recover for the injuries.. There was a judgment for f1,000 for plaintiff, and defendant, after motion for new trial overruled, appeals.

Erom the circuit court of tbe second district of Yalobusha, county. Hon. William O. McLean, Special Judge. Motion in supreme court to strike out a bill of exceptions. Appellee recovered a judgment in the court below against appellant, and a motion for a new trial was overruled.

From the circuit court of the second district of Yalobusha county. Hon. William C. McLean, Special Judge. Action by Eda Bowles, as administratrix of the estate of her deceased husband, against the Illinois Central Railroad Company, to recover damages for personal injuries suffered by the intestate, who was employed as switchman or foreman of the yards of the defendant at Water Valley, Miss.

From the chancery court of Washington county. ITon. W. R. Trigg, Chancellor. The facts appear from the opinion. Filed a very elaborate and voluminous brief and argument, and, as to the questions passed on by the court, cited the following authorities: The appointment of a receiver in the absence of a pending suit is void. Hardy v. McClellan, 53 Miss., 507; 52 Ala., 220; 53 Cal., 553; Wait on Insolvent Corp., §§254-258; 20 Am. & Eng. Ene. L., 24.

From the chancery court of the first district of Carroll county. Hon. T. B. Graham, Chancellor. In January, 1891, appellee, the Bank of Carrollton, had for its cashier one J. M. Jones, who had general charge of its affairs. J. T. Holman, treasurer of Carroll county, was a depositor of the bank.

<p>From the circuit court of the first district of Hinds county.</p> <p>Hon. J. B. Oiirisman, Judge.</p> <p>Action by appellee, Henry Turnbull, against the Alabama & Vicksburg Railway Company, to recover ten thousand dollars damages for personal injuries. At the time of the injury plaintiff was a laborer in the employ of a compress company, and was engaged about his duties in trucking cotton on the platform of said company, and within its in closure. A spur track of defendant’s railroad enters the compress building, and was used for placing cars within the same, convenient for loading and unloading. On the day in question, according to plaintiff’s testimony, a train of cars was either negligently pushed or kicked or allowed to roll on said track without any warning, and plaintiff, who was on the track adjusting a gangplank between the platforms, was caught by the cars and very severely crushed. As the opinion has no reference to the circumstances attending the injury, it is unnecessary to further state the facts as to this.</p> <p>Defendant pleaded a release of damages by the plaintiff, and to the plea plaintiff filed replications, which, as stated in the opinion, raised the question of its validity, plaintiff' contending that it was obtained through fraud and undue influence. The testimony in behalf of plaintiff throwing light on this question, which is held to be decisive of the cause as presented on this appeal, tended to show the following facts : When injured, plaintiff' was found to have been caught between the gangplank and the backing cars, and his stomach was crushed into the space of four or five inches. He was taken up from the track in an unconscious condition, and the superintendent of the compress at once telephoned for Dr. Wirt Johnston, a physician, who came in response to the call, and, on his advice, plaintiff was taken home, and thereafter said physician continued to attend him, no arrangement or any mention having been made as to who was responsible for his fees. Plaintiff was very badly hurt, but grew better, and after a few days Dr. Johnston told him that he had mentioned to the agent of the railroad company that it ought to pay him something on account of his injuries, as he was a poor colored man without means and having a wife and family to support, that the agent had sent him to offer twenty-five dollars. To this plaintiff replied, that he would not consider twenty-five dollars, and that he had not consulted with any one on the subject, not even his wife. To this the doctor replied that it was immaterial to him, that he was acting merely out of kindness to plaintiff because he was a poor colored man. Further conversation -was had, during which the doctor sought to get him to agree to compromise, aud during which plaintiff stated that he had no idea that the company would start with an offer less than one hundred dollars. A few days later, Dr. Johnston and E. L. Stevenson, claim agent of the defendant, went together to plaintiff’s home, and found him sitting up, but complaining of feeling somewhat worse. After inquiring as to his health, the agent expressed pleasant surprise at his improved condition, and told him he had cometo settle with him for his damages; that he was prepared to give him seventy-five dollars. Turnbull stated that he was not ready to make a settlement, and that he had so told Dr. Johnston, to which the agent replied that it would save a great deal of trouble, and that if he sued he would get nothing, that the lawyer would get it all. He told Turnbull that he had only brought seventy-five dollars, and after sometime asked Dr. Johnston if he had any money, and borrowed from him twenty-five dollars, and threw it into plaintiff’s lap. Turnbull persisted in his refusal to accept it, saying that the doctor had been coming every day, that' he was not nearly well, and that by the time he finished paying the doctor and other expenses there would be nothing left. The latter then told him that he had nothing to do with the doctor’s bill, as the compress would settle itTurnbull said no, that if he got any thing out of the railroad, he would have to get all from it. Then Stevenson proposed that he would give Turnbull one hundred dollars, and that Dr. Johnston should look to him for all the other bills. Turn-bull again referred to his not being well yet, and Dr. Johnston told him he would be as well as ever in the course of three or four weeks, and able again to labor at the compress. Stevenson then said: “ I don’t know what to think of a man wlm will have a doctor who gets him up and he don’t have any confidence in him;” and Dr. Johnston remarked, “ I told ■you coming out here that he wanted a lawsuit.” The conversation was continued about twenty minutes or half an hour, and finally Turnbull accepted the one hundred dollars,, and signed, by his mark, a release, previously prepared by Stevenson, by which he relinquished all claim for damages consequent on the injury. His signature, a mark, was witnessed by his wife and by Dr. Johnston.</p> <p>The foregoing is substantially the testimony of plaintiff and of his wife as to what was said and done in reference to the settlement before and at the time the release was signed. In some important particulars they are contradicted by the-testimony of Dr. Johnston and of Steveuson, who agree in testifying that the settlement was freely and voluntarily made by Turnbull. It was shown that Dr. Johnston was the regularly retained local surgeon of the defendant company at Jackson; that he was not paid a salary, but paid under an agreed fee-bill for cases attended. His duties were to attend to cases of persons injured by the company whenever called on by the superintendent; to report injuries and receive instructions as to whether he should take charge of them. But sometimes he attended cases in an emergency without waiting for instructions. In this case he had no instructions from the superintendent, and, when called to wait on Turnbull, opened an account on his books against the compress company. However, while attending to the case, and before the release was given, he heard from the company that it was perhaps liable, and after that supposed it would pay his bill, but did not feel authorized to make out a bill against the railroad company until’ the same was • definitely assumed by Stevenson for the company at-the time of the settlement. Dr. Johnston admitted undertaking the negotiation for a compromise, but says he did so on his own responsibility, and, also, that neither he nor Stevenson ever mentioned the fact that he was surgeon of the railroad company, his own reason being that he deemed the fact immaterial. He denied loaning Stevenson the money to make out one hundred dollars paid plaintiff, and denied that any unfair advantage or any misrepresentations were made to Turnbull, and also denied that he assured him that he would shortly be well. Dr. Johnston says that Turnbull had authorized him to offer to the company to accept one hundred dollars, and had named that amount as what he would agree to take. He admitted that he urged plaintiff to accept the one hundred dollars, and, when he refused, told him he had thought he was a man of his word.</p> <p>The testimony of Stevenson, who was an attorney, and the claim agent of defendant, and who was a witness on the first trial, corroborated that of Dr. Johnston in most particulars. He stated, however, that in his negotiations and conversations with Dr. Johnston he considered him as acting in the capacity of the company’s surgeon, who had been called in by the compress company to attend plaintiff'; that Dr. Johnston had never before aided him in effecting a settlement, but the surgeons of the company were expected to keep the interest of the company at heart; that when he came from his home in Vicksburg to make the settlement, he considered that it had all been arranged and agreed on, and took the doctor to the home of plaintiff merely to show him the way.</p> <p>After executing the release, plaintiff grew worse, and, after some months, was furnished by defendant with a pass to New Orleans, to enable him to go to the charity hospital in that city, where he remained a short time, without obtaining relief, and returned to Jackson. About ten months after the accident, having been confined at home a great part of the time because of the injury, he took advice of attorneys as to his rights, and then, for the first time, was made aware that Dr. Johnston, when he attended him and promoted the compromise, was the retained surgeon of the railroad company. On their advice, he at once tendered hack the one hundred dollars, the amount paid him in settlement, and interest, and, this being refused, brought this action to recover for the injuries.</p> <p>The case was tried at the July term, 1893, resulting in a verdict for $4,000, which the court set aside because of an instruction as to' the alleged negligence. At the next tei’m, a second trial resulted in a verdict for plaintiff for $6,500. This was deemed excessive by the court, and, on motion for a new trial, plaintiff entered a remittitur for $2,500, and the verdict was then allowed to stand for $4,000. Judgment accordingly, and defendant appeals.</p> <p>The opinion contains a further statement of the case.</p> <p>Plaintiff, in his replication to the plea setting up a release jro forma, averred certain facts in avoidance. As to this, the affirmative of the issue was on him. It was incumbent upon him to sustain the allegations of fraud and circumvention by clear and indisputable evidence. Railroad Go. v. Shay, 82 Pa. St., 198. This he failed to do. There was neither threat, force nor intimidation employed; the plaintiff' made the settlement voluntarily, and is concluded by it. There is no fact in the record calculated in the least to throw suspicion on the transaction. Had the jury obeyed the instruction as to this, the verdict would have been for defendant. But this was not done; there was a railroad in the case.</p> <p>This is the ease of an illiterate negro, weakened in body and mind by suffering, away from friends and advisers, beset by the shrewd claim agent and attorney of the railroad company, who, to compass his purpose, used the company’s surgeon, and, by art and persuasion amounting in law to fraud, secured the release for the pitiable sum of $100. This, too, when they both knew that the man was injured for life. One jury has assessed his damages at $4,000, and another at $6,500. It is not disputed that plaintiff was ignorant of the fact that Dr. Johuston'was the regularly retained surgeon of the company, and that he relied upon his statements and advice as coming from his own physician. Johnston admits that he did not intimate to the negro that he was the surgeon of the railroad company, and that he used every effort to induce him to compromise for this trivial sum. "We find him, at the outset, using the wire's to get the claim agent here. Then we find him using every effort to get the man to settle for a small sum, and, finally, he goes with the claim agent to clinch the settlement, and stands by when the agent tells him he is not seriously hurt, and not only does not protest, but actually urges the negro to accept'the $100 in full.</p> <p>As to the confidential relations between physician and patient, see Story’s Eq. Jur., § 314. As to the duty to disclose material facts, see lb:, § 287.</p> <p>For a case very similar to this, see Bussian v. Railway Go., ■56 Wis., 325, s.c. 10 Am. & Eng. R. R. Cas., 716. See, also, 30 lb., 60.</p> <p>Eor a case where there was overreaching, and where the parties did not deal on equal terms, see JHerschfield v. Railway Go., 2 Q. B. Div., 1. We also refer to Packet Go. v. Defries, 94 111., 598; 41 Minn., 169 ; 107 N. C., 738; Welsh v. Railway Go., 70 Miss., 20.</p>