Volume 72 — Mississippi Reports

From the circuit court of Warren county. HoN. John D. Gilland, Judge. The facts are stated in the opinion. 1. A civil wrong and.a crime, though both proceeding from one act, are legally distinct; and, where the injury is one that falls on the entire community, an individual suffering from it only as others do, can maintain no action against the wrongdoer, even if it should, in a degree, press more heavily upon him than upon the others.

FROM the circuit court of Warren county. HoN. J. I). GillaND, Judge. The facts are stated in the opinion. 1. The right of recovery, in this case, does not rest on our constitution, but on the common law liability of defendant for failure to provide safe machinery and appliances for its employes; and upon the statute giving the parent the right to sue. The liability existed before the constitution, and is independent of it. 2.

From the circuit court of the first district of Hinds county. HoN. J. B. CimiSMAN, Judge. Action by Newton Jones against the Alabama & Vicksburg Railway Co., to recover damages for personal injuries. The defendant' pleaded, among other things, a release executed by plaintiff. The circumstances attending the execution of the release, as well as all the other facts' necessary to an understanding of the cause, are stated in the opinion.

<p>Feom the circuit court of the first district of Panola county.</p> <p>Hon. EugeNE JohnsoN, Judge.</p> <p>Action by Lincoln Latham against the Illinois Central Railroad Company to recover damages for personal injuries. The facts are stated in the opinion. There was a judgment for plaintiff for §2,500. Motion for a new trial overruled, and defendant appeals.</p> <p>On the facts of this case plaintiff was not entitled to recover. If we concede that the brakeman had authority generally to eject trespassers from freight trains, we think that this ’case comes within the principle laid down in the New York cases, to the effect that the company is not liable when the brakeman uses his authority as a mere cover for the accomplishment of an independent and wrongful purpose of his own. 87 N. Y., 32; 64 II., 129.</p> <p>Assuming Latham’s testimony to be true, it is manifest that the brakeman was using his authority, if he had it, as a mere cover to extort money from Latham for his own use. Plaintiff was riding on top of a car to avoid paying fare. The regular fare was §1.50. The brakeman, who, by the rules of the company, was required to notify the conductor, concealed his presence, and demanded of him fifty cents. The brakeman had no authority to eject a trespasser, except under the orders of the conductor. It is perfectly clear that the brakeman did not act within the scope of his duty, but was subordinating his master’s business to his own interest and for his own personal gain. See 82 Tex., 561; 86 Penn., 418; 8 Am. & Eng. R. R. Gas., 117; 35 W. Ya., 492. On the general question as to the authority of a brakeman, see 116 Mo., 81; 56 Fed. Rep., 1014.</p> <p>The case is controlled bj Railroad Oo. v. McAfee, 71 Miss., 70, and Rail/road Go. v. flarris, lb., 74.</p> <p>On the question whether the brakeman who ejected plaintiff was on duty, and acted within the scope of his duties, there is a sharp conflict of evidence, and the question was for the jury. Railroad Co. v. Ccmtrdl, 70 Miss., 329. It is within the scope of a brakeman’s duty to eject trespassers. Railroad Go. v. Kelly, 14 Pac. Pep., 172.</p> <p>It was shown by oral evidence and by the printed rules of the company that it is the duty and the common practice of appellant’s brakemen to exclude trespassers on failure to pay fare. The mere custom of doing this,is enough to establish that it was their duty. 3 Am. St. R., 220, s.c. 48 Ark., 187. Whether the act of a servant is within the scope of his duty is for the jury. 120 N. Y., 117; 17 Am. St. R., 611.</p> <p>A master is responsible for the 'mode in which a servant performs an act within the scope of his duty. 27 Am. St. R., 901; Railroad Co. v. Seals, 13 So. Rep. (Ala.), 917. The case differs from Railroad Go. v. MeAfee, in that this plaintiff was thrown off because he either would not or could not pay fifty cents for fare. -If it be true that the brakeman intended to appropriate the money to his own use, it was without the knowledge or collusion of plaintiff, and does not relieve the company from responsibility.</p>

From the circuit court of Bolivar county. HoN. R. W. WilliamsoN, Judge. Action by T. R. Scott against the Yazoo & Mississippi Valley Railroad Company to recover the value of a mule killed by its locomotive. Verdict for plaintiff, and defendant appeals. The opinion states the substance of the testimony. The physical facts in the case contradict the testimony of the engineer.

Feom the circuit court of Tunica county. HoN. E. W. WilliamsoN, Judge. Action by appellant against appellee. From a judgment in favor of defendant, this appeal is prosecuted. The opinion states the facts.

Thom the chancery court of Sunflower county. HoN. W. E. TRIGG, Chancellor. In addition to the facts set out in the opinion, it is, perhaps, material to state that the appellants, who filed the bill in the court below to recover of the administrator the proceeds of the life insurance policy, are the brothers of Wm. H. Rice, deceased, whose life was insured. They reside in North Carolina. The said Wm.

<p>FroM the circuit court of Leflore county.</p> <p>HoN. K. W. WilliamsoN, Judge.</p> <p>This is an action by appellant against appellee to recover on a policy of fire insurance. W. A. Drennan was the local agent for several insurance companies, including appellee, the Georgia Home Insurance Company. He was also a stockholder, director, and vice president of the Greenwood Ice & Coal Company. On February 14, 1893, he issued four policies, aggregating $12,-000, on the buildings and machinery of the appellant company, one of these being the policy sued on.</p> <p>The property insured had originally belonged to the Leflore Ice & Coal Company, which became insolvent, and the property was sold under foreclosure proceedings, and acquired by certain persons, who organized the Greenwood Ice & Coal Company, in which company Drennan was the owner of five shares of stock. He was elected vice president, and was also one of the directors, and seems to have participated in their meetings, but never had anything to do with the active control or management of the business, and received no salary. The premiums on the policy issued by Drennan were paid by money in his hands, as agent, derived from the unearned premiums on the canceled policies in favor of the Leflore Ice & Coal Company.</p> <p>On the day after the policies were written, and before they passed out of the possession of Drennan, the property insured was burned, and, during the fire, one Keesler, the secretary and treasurer of the Ice & Coal Company, called on Drennan for the policies, and Drennan immediately turned them over to him.</p> <p>A few days after the fire, one Kimball, the adjuster of ap-pellee, went to Greenwood and remained there two days investigating the loss, and, while there, suggested the propriety of an arbitration, and produced and signed an agreement therefor, and it was signed also by the officers of appellant and the adjuster of the other companies. The nature of this agreement, which was dated February 23, 1893, is stated in the opinion of the court. After signing this agreement, Kimball called on the secretary and treasurer of the appellant company to furnish him with a list of its stockholders and officers, which was done. This statement showed Drennan to be its rice president and one of its stockholders. Kimball left on the same day, taking with him this statement. He visited several other towns, and, on the sixth of March, wrote a letter from Meridian, Miss., withdrawing from the agreement for an ap-praisement. He testifies that, in revoking the agreement, he acted, in part, on information from the home office of the company, to the effect that the daily report of Drennan, showing the issuance of this policy, had been received at the home office three or four days after the fire, and in the same mail with the notice of loss. Notwithstanding this action of Kimball, the appraisers, who had been selected, proceeded to make their award. The company, however, refused to pay, and denied all liability, whereupon this suit was brought. In view of the opinion, it is not necessary to set out the pleadings, or to make any further statement of facts. There was a peremptory instruction for defendant, judgment accordingly, and plaintiff appeals.</p> <p>The defense that Drennan was incapacitated to act, on account of his interest in the plaintiff corporation, cannot be made, in view of the action of Kimball, which estops the company from setting up the defense. The arbitration was had at the suggestion of Kimball. On the question of estoppel, see Bi/vara v. Insurance Go., 62 Miss., 720; 2 Wood on Fire Insurance, § 526; 36 Wis., 67.</p> <p>It.was the duty of the defendant, on learning this policy had been issued and a loss had occurred, to act at once, either by repudiating the agency of Drennan, or acknowledging its liability.</p> <p>We think it an open question whether Drennan’s acts as agent of the defendant were voidable, under the evidence in •the case. See 48 Wis., 420.</p> <p>In view of the dual relation of Drennan, the policy was voidable at the election of the insurer. 1 Biddle on Insurance, §497; Story on Agency, 239; Ostrander on Insurance, 97-100; 11 Am. & Eng. Ene. L., 335; 1 lb., 380; Insurance Co. v. Myers, 55 Miss., 479.</p> <p>The submission to arbitration cannot estop the insurance company. It distinctly stipulates that it does not waive any rights. Kimball, on learning the facts as to Drennan’s relation to the appellant company, promptly wrote withdrawing from the agreement. There was not the semblance of acquiescence on its part. See Insurance Association v. Matthews, 65 Miss., 301.</p> <p>A policy issued by the agent to himself is voidable. Insurance Co. v. Insurance Co., 14 N. Y., 85; 6 Pick., 198; Story on Agency, §211; Pailey on Agency, 33; 10 Yes., 381; 17 Barb., 132; Berryman’s Digest, p. 1267; 56 Conn., 1, s.o. 7 Am. St. R., 272; Mechem on Agency, § 67.</p>

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

Nrom the circuit court of Montgomery county. SoN. C. H. Campbell, Judge. Action by appellant against appellee on a policy of fire insurance for |500, $400 thereof being on a stock of merchandise, $20 on store and office furniture and fixtures, and $80 on furniture belonging to a restaurant conducted in connection with the store. The facts touching the points passed on by the court are stated in the opinion.

From the circuit court of Holmes county. Hon. C. H. Gamfbelu, Judge. The opinion sufficiently states the case to indicate the questions decided. As to the application for a continuance, the decision seems to depend entirely upon a question of fact. Therefore, it is not deemed necessary to make any statement in regard to this, or to give the argument of counsel on the point.

<p>From the chancery court of Warren county.</p> <p>Hon. Claude Pintard, Chancellor.</p> <p>The case is stated in the opinion.</p> <p>While the subject of the act of 1882 is, in a general sense, taxation, it is taxation of a peculiar kind, and under certain express limitations and for purely local purposes, and we submit that its subject-matter is not revised by the provisions of the code of 1892. The whole question is whether the act is a general or a local law, and whether, in any event, the subject-matter was revised by the code.</p> <p>1. The subject of the act of 1882 was the power of cities to levy a privilege tax on insurance companies which had paid the state privilege tax. This subject was revised in § 3412, code 1892, and hence the act was repealed. The two statutes are directly repugnant. See French v. State, 52 Miss., 759; JRuilroad Co. v. Weiner, 49 II)., 725. Counsel for appellant mistake the purpose for which the act was passed for the subject-matter.</p> <p>2. Section 5 of the act of 1882 applies to all cities and towns having a regularly organized fire departmént; this makes it a general act. In determining whether an act is general or local, regard must be had to the substance rather than to the form. 6 Ohio, 269; 83 Ill., 585. A law which operates on all standing in a certain relation or condition, is general. 39 Iowa, 112. And so is an act which applies to or embraces all of a class of persons who are or may come into like circumstances or conditions. 86 Mo., 540; 85 II)., 64; 77 Penn., 338; 84 Cal., 226; 21 Am. St. R., 780.</p>

From tlie chancery court of Sunflower county. HoN. W. R. Trigg, Chancellor. The opinion states the facts. 1. Admitting the proposition of opposite counsel to be true, that ordinarily appellant’s remedy would have been by supplemental bill, the rule has no application, because the bill was filed after the former case had been decided and an appeal had been taken therein.

From the chancery court of Sunflower county. HoN. W. R. Trigg, Chancellor. Bill to cancel defendant’s claim to certain land and to recover possession. Decree for defendants. Complainant appeals. The-opinion sufficiently states the facts. Mrs. D. L. Garnett and Mrs. L. A. Garnett were both purchasers with notice of appellant’s rights.

Fbom the chancery court of Sunflower county. HoN. W. R. Trigg, Chancellor. The opinion contains a sufficient statement of the case. Appellant inherited whatever rights his brother had at the time of his death. In Harvey v. Briggs, 68 Miss., 60, it was held that the privilege of disaffirming a contract made by a minor descended to his heir. There are stronger reasons for holding that the right to redeem from a tax sale descends.

<p>1. Evidence. Competency of part. General objectioir insufficient.</p> <p>Failure to exclude incompetent parts, of the testimony of a witness will not be held erroneous where objection is not made until after he had 'finished testifying, and then only by a motion to exclude his entire testimony.</p> <p>2. Former Acquittal. Record. Identity of offense. Evidence.</p> <p>To avail of a former acquittal of unlawful retailing', the record must be introduced, and by evidence alivm.de the identity of the offense must be shown. Rocco v. State, 37 Miss., 857.</p> <p>. 3. Instruction. Refining reasonable doubt. Conscientious belief.</p> <p>An instruction in a criminal case in the following language is erroneous : “You are not required to know that defendant is guilty; but if you conscientiously believe, from all the testimony, he is guilty, you should convict, for then you have no reasonable doubt, and the case is made out to a moral certainty.” Conscientious belief is not necessarily belief beyond a reasonable doubt.</p>

From the circuit court of Tunica county. HoN. R. W. Williamson, Judge. Appellants, Jesse Harris and Kinney Wilbourn, were indicted for the murder of Henry Mitchell, and were convicted of manslaughter. A motion for a new trial was overruled, and defendants appealed. The defendant, Wilbourn, had made an affidavit charging deceased with maliciously shooting a mule.

Feom the circuit court of Warren county. HON. JohN D. (xillaNd, Judge. Appellants, Mamie Peabody, Belle Johnson and Tinie Walker, were arraigned before a justice of the peace under § 1322, code 1892, on an affidavit charging them with vagrancy in being “common prostitutes, without other means of support or employment. ’ ’ Being convicted, they were taxed with costs, and each required to enter into bond in the sum of $250 for good behavior.

FROM the circuit court of Carroll county. HoN. C. H. Campbell, Judge. Nez Holman and Ben Ball were jointly indicted for burglary, and pleaded not guilty. Afterwards, at the same term, Holman moved for leave to withdraw his plea, and ask for a severance. The court overruled his motion, refused the severance, and defendants were jointly tried.

<p>From the circuit court of Amite county.</p> <p>HoN. W. P. Gassed y, Judge.</p> <p>The opinion states the case.</p> <p>The indictment is not good as a common law indictment,, because it does not sufficiently describe the instrument. Sections 1358, code 1892, cannot dispense with the constitutional right of the accused to demand the nature and cause of the accusation. The indictment is the exclusive source of the notice to the ac-cased of the charge, and it must contain specific statement of the facts which constitute the crime.</p> <p>The description of the instrument is sufficient. It is not suggested that there was any other similar document, or that defendant was misled or surprised. The record shows that accused was ready with his defense, and prepared to defend the precise charge of altering this particular deed.</p>

From the circuit court of Warren county. Hon. John D. Gilland, Judge. Appellant was convicted of murder, and appealed. The facts relevant to the only point passed on by the court are stated in the opinion. A confession, before it is admissible in evidence, must be shown to be voluntary. Qarra/rd v. State, 50 Miss., 147; Cady v. State, 44 II)., 332; Dichr. State, 30 It., 593; Frank v. State, 39 It., 705.

Feom the circuit court of the second district of Panola county. HoN. Eugene JOHNSON, Judge. Appellant was indicted for unlawfully selling intoxicating liquors.

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. Appeal from a conviction of seduction. The case is stated in the opinion.

<p>Fjrom the circuit court of Wilkinson county.</p> <p>HoN. W. P. Cassedy, Judge.</p> <p>Appellant was indicted for robbery. After the state had closed its evidence, defendant moved to eliminate or sti’ike out the charge of robbery, because the testimony made, at most, only a case of larceny. The court sustained this motion, and the trial proceeded, resulting in a verdict of conviction for grand larceny. The defendant thereupon moved for a new trial, and the motion was sustained. Without waiting for another trial, the district attorney prosecuted this appeal, and assigns for error the action of the court in eliminating the .charge of robbery and restricting the state to a trial for grand larceny.</p>

Fkom the circuit court of Tate county. HoN. Eugene Johnson, Judge. Appellant has been convicted of murder, and appeals. The case sufficiently appears from the opinion.

From the chancery court of Sunflower county. HoN. 1Y. R. Trigg, Chancellor. Held: in favor of the remainderman, that this was simply a redemption. The same principle was announced in Jones v. Merrill, 69 Miss., 747. These cases are not applicable here, because when the land was sold for taxes White and Collins were not under .obligation to pay the taxes.

From the chancery court of Leflore county. HoN. W. E. Trigg, Chancellor. Bill by Albert Aron against Chaffe, Powell & West and L. T. Basket.

<p>1. Employees’ Liability. Co-trespasser. Damages.</p> <p>While an enrployer may not be liable for the negligence of an independent contractor, if a proper person, where the act contracted to be done is itself a wrong, the employer is liable, not npon the principle of respondeat superior, but as a co-trespasser.</p> <p>2. Co-teespassee. Independent contractor. Cutting trees. Negligence.</p> <p>One negligently failing to acquaint himself with the real boundary line of his own land, who employs another, though an independent contractor, to cut trees, near the line, on land which he points out as his own, but which trees turn out to be beyond the line and on the land of a third person, is a negligent co-trespasser, and liable for the statutory penalty for cutting such trees.</p>

Eeom the chancery court of the first district of Carroll county. Hon. T. B. Geai-iam, Chancellor. Bill against appellee, under § 4147, .code 1892, to cancel the claim of defendant to certain school land alleged to have been reserved in lieu of sixteenth section land. The prayer is that if defendant’s claim is not canceled, the court shall fix the date of expiration of the lease.

From the circuit court of Tunica county. Hon. R. W. Williamson, Judge. The opinion sufficiently states the case. Filed a brief, citing many authorities to show that appellant had a common law lien on the cotton; but, as the court adopts the view that a lien existed by virtue of the statute, the authorities are not given. The three bales of cotton held by appellant were liable for the ginning of the whole crop. See Sehmídt v. Blood, 24 Am.

Fhom the circuit court of the second district of Carroll county. HoN. C. H. Campbell, Judge. Petition by appellant against appellee, who is superintendent of education of Carroll county, for a mandamus to compel the issuance of a first-grade license to appellant as a teacher in the public schools of said county.

<p>From tbe Chancery court of Warren county.</p> <p>HoN. Claude PiNtard, Chancellor.</p> <p>Appeal by complainants from an adverse decree. The opinion states the case.</p> <p>If by the use of the word ‘ ‘ store ’ ’ it was not intended to include a place where junk is bought and sold, what reason is there for holding that it was intended to include dry goods or grocery stores ? Where shall we draw the distinction ? This court has held that a small room used as an office, in connection with a lumber yard, is a store. Folhes v. State, 63 Miss., 81.</p> <p>The tax in question is imposed in a revenue ordinance. There is no pretext that it was exacted as a police regulation. Therefore the tax is not authorized as an exercise of the police power.</p> <p>A junk shop is a place where odds and ends are sold and purchased. 12 Am. & Eng. Ene. L., p. 243; 12 Rich. (S. C.), 470. A similar definition is given in the Century dictionary. The state levies no privilege tax on junk shops. Therefore the city of Vicksburg has the right, under its charter, to impose the tax in question, and it does not come within the limitation imposed by § 3412, code 1892, which restricts municipalities to a levy of fifty per cent, on the state tax. A junk dealer is not the keeper of a store within the meaning of that section. The fact that the business is conducted in a storehouse does not change this. Nor does the fact that another kind of business is carried on in the house, which subjects the party to the payment of the state tax. The business of a junk dealer, like that of a pawnbroker, is a distinctive calling, and taxable as such.</p> <p>FoTkes v. State, 63 Miss., 81, is not applicable. There it was held that a lumber yard was a store, within the meaning of the statute, because it was the business that, was taxed, irrespective of the fact that it was carried on in or outside of the house.</p>

From the chancery court of Yazoo county. Hon. H. C. Conn, Chancellor. Appeal by complainants from an adverse decree. The opinion contains a statement of the facts bearing upon the only point decided. The decree appealed from is contrary both to the law and the facts. The evidence shows that complainant furnished the money to purchase and improve the land, and that the title was taken in her father’s name for her benefit.

Prom the circuit court of Holmes county. HoN. C. H. Campbell, Judge. Ejectment. Judgment for defendant. Plaintiffs appeal. The controlling facts, as found by the 'court from the record, are stated in the opinion. . The homestead is a privilege, and not a right. It does not depend upon the age, health, or physical condition of the occupant. He must be a householder and the head of a family.

Ebom the circuit court of Lauderdale county. IióN. S. H. Terral, Judge. Action by C. T. Ellis against the Mississippi Cotton Oil Company to recover for personal injuries. The appellant company owns and operates a large cotton oil mill in the city of Meridian, situated near the track of the Mobile & Ohio Railroad, a spur switch of which runs into a large inclosed shed connected with the mill.

<p>Neou.igeNcb. Dangerous premises. Excavation.</p> <p>Where the owner of a lot, upon a part of which is a store covering- a cistern, invites the public to use the vacant part of the lot and paths across it as a highway, and the store burns, leaving the c'.stern open and in dangerous proximity to the paths, which continue to be used by the public, such owner, by removing all g-uards and protection from the cistern, becomes liable to one who, while exercising reasonable care, strays in the dark from the path and falls in the cistern, and is injured.</p>

From the circuit court of Holmes county. Hon. C. H. Campbell, Judge. Appellant, Alfred Shrimpton & Sons, of New York, sold to appellee, Warmack, in this state, a great gross of sewing machine needles.

From the circuit court of Warren county. HoN. JohN D. GillaND, Judge. The opinion states the case.

FroM the circuit court of Washington county. HoN. R. W. WilliaMSOn, Judge. The opinion states the cáse. (1) The place where appellant was injured was a sidewalk dedicated and maintained for public use; (2) it was in a defective condition; (3) the city had actual or constructive notice of its condition; (1) appellant was injured while on the sidewalk; (5) its defective condition caused his injuries.

<p>1. Teust-dbed. Acknowledgment; taken before trustee. Invalidity.</p> <p>An acknowledgment to a trust-deed taken before an officer who is himself trustee therein, with power of sale to pay debts, is void, and does not entitle the deed to be recorded. Wasson v. Conner, 54 Miss., 351, cited.</p> <p>2.. Replevin. Trust-deed. Proof of execution. Evidence.</p> <p>Where plaintiff in replevin, claiming under a trust-deed executed by several, but improperly acknowledged, offers evidence of an admission by one of the grantors that he had executed it, but the trust-deed is not thereafter offered in evidence, and the property described in it is not identified as belonging to that grantor, judgment is properly rendered for defendant.</p> <p>3. Continuance.' Refusal; when not error. Application.</p> <p>This court will assume th^it a continuance was properly refused, if the application therefor does not appear in the record. The mere recital in the bill of exceptions that the party moved for a continuance on account of the absence of material witnesses, and that it was denied, does not show error.</p>

<p>From: the chancery court of Yazoo county.</p> <p>HoN. H. C. CoNN, Chancellor.</p> <p>Appellee, Kate Decell, widow of T. F. Decell, filed this bill against I. N. Gilruth, as surviving partner of Gilruth & Decell, a firm composed of her husband and the defendant. The bill alleges that complainant was the owner of $1,600 realized from .the sale of her separate property, and on deposit, to her credit, in the Capital State-Bank of Jackson; that her husband withdrew the money from the bank, having forged her name to a check for' that purpose; that she remained ignorant of the transaction for some months thereafter, when, having learned of it, she separated from her husband, who was shortly afterwards killed in an encounter with her brothers; that the $1,600 thus obtained by her husband was deposited to his own credit in a bank in Yazoo City, and $500 thereof was paid into the firm of Gilruth & Decell as part of his subscription to the capital of the firm; that said sum, together with the other assets of the firm, on the death of her husband, passed into the hands of Gilruth, as surviving partner; that the conversion of said funds by her husband was a fraud upon complainant, and constituted her husband a trustee ex maleficio; and that the firm assets, with which this fund had been commingled, became subject to a charge in her favor, in preference to all other claims against the firm. The bill prays that the trust be established and enforced against the said assets.</p> <p>Demurrer to the bill sustained. Complainant appeals.</p> <p>The bill does not aver that Gilruth had knowledge of the source whence the $500 came. The burden was on complainant to show this, and, in the absence of such allegation, Gilruth must be treated as a bona fide purchaser for value. Atkinson v. Greaves, 70 Miss., 42. But, in any event, the fund cannot, under the circumstances, be followed into the assets. Bates on Partnerships, Secs. 481, 486; Pickets v. McPherson, 59 Miss., 216. If the purpose of the bill had been to reach the individual property of Decell, his administrator was a necessary party. Bohertshaio v. Manway, 52 Miss., 713.</p> <p>One who has obtained another’s property by fraud is a trustee ex maleficio of the thing while in his manual possession. Christy x. Sill, 95 Pa., 380; Bispham’s Equity, §91. Once a trustee, the relation continues until the trust is settled; lapse of time or silence of the cestui que trust cannot alter the relation. This case is covered by the principles laid down in Mcleodv. Bank, 42 Miss., 99. See, also, Oliver v. Piatt, 3 How. (U. S.), 333.</p> <p>Gilruth cannot claim to be a purchaser without notice. Decell was the managing partner, and notice to one partner is notice to the other. 17 Am. & Eng. Ene. L., 1080.</p>

FroM the circuit court of Lee county. HoN. NewNAN Cayce, Judge.

FroM the chancery court of Calhoun county. HoN. B. T. Kimbrough, Chancellor. W. R. Creekmore was the circuit clerk of Calhoun county, and kept his son, Hiram, fourteen years of age, in the office as his assistant. He acted as deputy circuit clerk, and, as his father testifies, had full authority to attend to any business connected with the office.

From the circuit court of Iiolrues county. Hon. C. H. Campbell, Judge. Motion to vacate a sale under execution. In August, 1892, the Watertown Steam Engine Company brought an action in the circuit court of Holmes county against J. C. Pinkerton and J. R. Watson to recover the balance due on a note payable to the Kingsland & Douglas Manufacturing Company, transferred to plaintiffs.

Froji the circuit court of Holmes county. Hon. C. H. Campbell, Judge.

From the circuit court of Washington county. HoN. R. W. Williamson, Judge. The case is stated in the opinion. An unbroken line of decisions in this state holds that the in-dorsement of the note made appellant a surety, and that the extension granted the principal, for a valuable consideration, for a definite length of time, not agreed to by the surety, discharged him.

From the chancery court of Lee county. HoN. Baxter McFarlaND, Chancellor. The case is stated in the opinion. The real question in the case is whether the writs of garnishment issued and served by the sheriff are void. If so, no liens attached in favor of the Bank of Okolona and the Bank of West Point, and appellant’s writ became a first charge.

From the circuit court of Monroe county. HoN. NewNAN Cayoe, Judge. An attachment for rent was sued out before a justice of the peace, by H. S. Gilleylen against his tenant, J. A. Stewart. The attachment was for rent not due, but to become due in monthly installments, and the ground of the attachment was that the tenant was about to remove his effects from the leased premises, leaving the rent unpaid.

FroM the circuit court of Lauderdale county. HoN. S. H. Terral, Judge. F. Y. Brahan executed eight notes, payable to the order of L. A. Ragsdale, and maturing regularly at intervals of six months. The first and second notes were paid at maturity. Several others, having matured, were not paid, and the First National Bank of Clarksville, Tenn., to which the notes had been transferred for value, placed them in the hands of attorneys for collection.

From the circuit court of Warren county. HoN. L. W. Magruder, Special Judge. Appellants sued the Yicksburg Cotton Oil Co., as maker, and Roach & Edwards, as indorsers, of a note for $1,500. The note was given in part payment for certain machinery appurtenant to a cotton oil mill, and plaintiff, in addition to a personal judgment, sought to enforce its statutory lien on the machinery on which it was situated.

FroM the circuit court of Washington county. HoN. R. W. WilliamsoN, Judge. Appellant, C. E. Fenner, sued out an attachment before a justice of the peace against appellee, E. Boutte, and caused the same to be levied by the sheriff on a horse which, at the time, was being kept for the defendant at a livery stable. Defendant executed a forthcoming bond, which was accepted by the sheriff.

From the circuit court of the first district of Yalobusha county. HoN. Eugene JOHNSON, Judge. This is a habeas corpus proceeding by Yolney Moore to recover ' from G. A. Allen the custody of an orphan child who had been apprenticed to petitioner by the board of supervisors, and who, it is alleged, was unlawfully withheld by defendant.

Feom the circuit court of Warren county. HoN. John D. GillaND, Judge. The case is stated in the opinion. The proceeding in this case is an action. Virden v. Botoers, 55 Miss., 1. The assessment made is a declaration. The issue to the propriety of the assessment, ancl the approval or disapproval of the court is a judgment of the court, and the state, or its officer, may appeal from the judgment without bond.

From the circuit court of Washington county. HoN. K,. W. WilliamsoN, Judge. The facts are stated in the opinion. The fact that the money was lost through no fault of the collector, but throiigh the failure of the bank, is no defense. Griffin v. Levee Commissioners, 71 Miss., 767. The paper signed by the mayor and finance committee conferred no authority, and the agreement to release the collector from liability was a nullity.

From the chancery court of Rankin county. HoN. H. C. CoNN, Chancellor. The case is stated in the opinion. Under § 2755, code 1892, the former debt is sufficient to uphold the new promise to pay, but to hold that a new note creates a lien is to hold that a lien on land may be created by parol, or on a homestead without the wife’s consent. The intent to extinguish the lien must be clearly shown. Kausler v. Ford, 47 Miss., 289.

From the circuit court of Sunflower county. HoN. R. W. WilliamsoN, Judge. The case is stated in the opinion. This case is supposed to have originated before a justice of the peace, but there is nothing in the record to show that fact. The circuit court was without jurisdiction, and erred in proceeding to trial and judgment.

<p>1. Sale. Rescission. Mutual mistake. Collateral fact.</p> <p>A sale is not voidable because of a mutual mistake as to collateral facts unknown to both parties, and as to which the sources of information were open alike’to both. IPise v. Brooks, 69 Miss., 891.</p> <p>2. Same. Title. Prior incumbrance. Rescission.</p> <p>Accordingly, where both seller and buyer of a note -suppose it is secured by a first lien on property, and the seller makes no representations, and the buyer examines for himself the record of deeds, the fact that there was a prior trust-deed on record, which the buyer failed to discover, is not ground for rescinding the sale.</p>

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. Appellant, a corporation, filed the bill in this case in the court below against E. L. Sykes, as principal, and W. B. Walker, B,. A. Houston, and J. J. Evans, as sureties. .

FroM the circuit court of the second district of Coahoma county. HoN. E. W. WilliamsoN, Judge.

From the circuit court of Monroe county. HoN. NewNan Cayoe, Judge. Held: appellant and his associates were requested to make a dissection of the body in order to ascertain the cause of death. They declined to make same without compensation.

From the chancery court of Sharkey county. Hon. Claude PiNtard, Chancellor. Bill by Maria Mitchell, Amanda Davis, Pearly Harris, Stella Gundy and Sargent Gundy, the last two being minors, suing by next friend, against R. P. Gundy, N. L. Gundy and Jacob Gusdofer.

From the circuit court of Coahoma county. Hon. R. W. Williamson, Judge. N. W. Lea and E. L. Lea, his wife, owned separate plantations in Coahoma county, Miss. In 1891 and 1892 N. W. Lea, having rented bis wife’s land, conducted planting operations on both places in his own name. In carrying on the business he also used certain mules and farming implements belonging to his wife. He purchased supplies from Harris, Andrews & Co. with which to carry on the said business.

From the circuit court of Noxubee county. HoN. NewNan Cayoe, Judge. Action by appellant against appellee on an open account.

From the circuit court of Clay county. HoN. C. H. Campbell, Judge. Action by appellant against the Shippers’ Compress Company to recover a dividend on fifty shares of the capital stock of said company. The certificate of shares was numbered 23, and was issued to appellant, W. P. Timberlake, in 1887. In 1888 he assigned the same to T. C. King, by writing his name on the back of the certificate.

From the circuit court of Copiah county. HoN. J. B. ChrismaN, Judge. Replevin by appellant, as trustee, against appellee for a lot of corn. Judgment for defendant. Motion for new trial overruled. Plaintiif appeals.' The opinion contains a further statement of the case.

From tbe circuit court of Pike county. Hon. W. P. Cassedy, Judge. Action by appellee against appellant on an insurance policy for §1,000, insuring the husband of appellee, an employe of the Illinois Central Railroad Company, against bodily injuries sustained through external, violent and accidental means. ’ ’ The assured was hanged by a mob during the life of the policy. Plaintiff recovered judgment for the full amount óf the policy. Motion for new trial overruled.

FroM the chancery court of the second district of Coahoma county. PIoN. W. R. Trigg, Chancellor. In January, 1893, one Brenner, a merchant in Ciarksdale, was attached by a number of his creditors, and a bill was also filed for the appointment of a receiver, and, by the consent of all the parties in interest, including Brenner, R. H. Wildberger, the appellant, was appointed receiver, and took charge of the assets, consisting of a stock of merchandise.

From the chancery court of Harrison county. HoN. W. T. HoustoN, Chancellor. Bill by appellee against appellant for divorce, on the ground of desertion. Complainant also alleged that the defendant had treated her in a cruel and inhuman manner, but no specific acts of neglect or cruelty were shown, and no proof was taken on this, ground. Complainant alleged that she was a resident of Harrison county, Miss., and that the defendant resided in New Orleans, La.

From the circuit court of Tallahatchie county. Hon. R. W. Williamson, Judge. Appellee, a merchant, sued appellant for damages for failure to deliver certain cotton seed and for money advanced. A defense relied on was that plaintiff was a public cotton seed buyer and had not paid the privilege tax required by § 3342, code 1892, which makes void all contracts in relation to a business transacted by anyone without having paid the required privilege tax.

FROM the chancery court of Monroe county. HoN. Baxter McFarland, Chancellor. On February 23, 1893, Whitney, a druggist, made a general assignment of his stock of goods, for the benefit of creditors. He preferred a debt to his mother for about §2,000. Appellant, Paine, was made assignee, and filed his bill in the chancery court, and made bond in accordance with chapter 8, code 1892.

Prom the circuit court of Washington county. HoN. R. W. WilliamsoN, Judge. Action by L. H. Roots against Ii. E. Wetherbee on a note executed by the defendant to the Mississippi Hedge Company and assigned to plaintiff. Plaintiff died pending the suit, and the same was revived in the name of his administrators.

From the chancery court of Lincoln county. HoN.'H. C. Conk, Chancellor. Appellee, Toney Alexander, filed this bill against appellants, Samuel Aird and wife, seeking to recover for breach of a covenant of warranty.

FroM the chancery court of Lee county. Hon. Baxter McFarland, Chancellor.

From the chancery court of -Noxubee county. HoN. T. B. Graham, Chancellor. This is a bill by appellee against appellants to remove clouds from title.

From the circuit court of the second district of Panola county. HoN. EugeNe JOHNSON, Judge. S. Grumbel & Co., commission merchants and cotton factors of New Orleans, La., sued Bur bridge & Houston, merchants of Batesville, Miss., on a promissory note. Defendants pleaded as a set-off that plaintiffs were indebted to them for the value of. 22 bales of cotton.

Eroh the chancery court of Lauderdale county. Hon. W. T. Houston, Chancellor. For the facts, reference is made to the opinion. The only fraud alleged is the violation by Stroud of his contract to pay the taxes. It was the duty of appellee to pay taxes on her own land, and the alleged agreement was to answer for the debt of another, and was within the statute of frauds.

<p>1. GENERAL Assignment. Receivership. Replevying goods. Practice. Decree.</p> <p>Where, after a g-eneral assignment, the seller of goods, seeking to reclaim them as having been fraudulently purchased by the assignor, is permitted by the court administering- the trust to take the g-oods upon executing a forthcoming- bond, and, on a cross petition of creditors, the court holds the assignment void, it is proper to award cross petitioners a decree against such seller and his sureties for the return of the goods, or, in the alternative, a personal decree for their value.</p> <p>2. Same. Expenses. Counsel fees of receiver. When allowed. Code 1892, §583.</p> <p>Section 583, code 1892, providing- for compensation to receivers for necessary expenses, refers only to such as are incurred in benefiting- or preserving- the estate. Hence, the assig-nee in a g-eneral assignment, acting- as receiver, should be allowed counsel fees incurred in successfully defending the assignment or preserving- the assig-ned property, but not fees incurred in an unsuccessful defense of the assignment against creditors on whose petition it is set aside as fraudulent. This is so, whether the assignment be held void for actual fraud or for merely failing to comply with the statutory requirements. Kelly v. Damis, 37 Miss., 76, cited.</p> <p>3. Same. Attach upon assignment. Duty of assignee. Indemnity.</p> <p>The assig-nee-receiver is under no leg-al duty to defend, at his own expense, an assignment when attacked, but' he should give notice to tlie creditors interested to defend or secure from them indemnity ag-ainst expenses necessary in the defense.</p> <p>4. Same. Attorneys for receiver representing preferred creditors.</p> <p>Where a g-eneral assig-nment is attacked as fraudulent, there is no impropriety in counsel for the receiver also representing- creditors who are preferred in the assignment and seeking- to uphold it.</p> <p>5. Same. Compensation of receiver.</p> <p>The assignee in a general assig-nment who, under chapter 8, code 1892. is also receiver, and acts also as manager of a business, may be allowed a gross sum for his entire services as receiver and manager. Dichtenstein v. Dial, 68 Miss., 54.</p>

From the circuit court of Attala county. HoN. C. H. Campbell, Judge. Appellant, Burt, was convicted of the murder of Jesse Evans, and sentenced to life imprisonment. The conviction rests mainly on circumstantial evidence. There was also certain testimony tending to show a threat by accused against deceased. Evans,. the deceased, had been charged with the killing of one Eyals, a half-brother of Burt, -the accused.

FROM the circuit court of Desoto county. HoN. Eugene JohnsoN, Judge. Appellant, Hunt, has been convicted of murder and sentenced to be hanged. Briefly stated, the circumstances of the killing were as follows: Deceased, John Scott,-married appellant’s daughter, and afterwards had frequent quarrels with her. On the night of the killing Hunt went to the home of Scott, after Scott and his wife had retired, and called Scott, and told him that he had come to whip him.

Feom the circuit court of Clarke county. HoN. S. H. Terral, Judge. J. F. Smith was indicted for arson and acquitted, and the state appeals, assigning for error the action of the court in ex-eluding from evidence a written confession of guilt.

<p>1. ReohstbatioN OF Deeds. Actual fraud. Estoppel.</p> <p>Registry laws cannot he invoked to shield actual fraud; hence the holder of a recorded title may, hy his conduct inconsistent therewith, be estopped to assert it against one who has been misled by him, to his prejudice. Staten v. Bryant, 55 Miss., 261.</p> <p>2. Fraudulent Conveyance. Dealing with insolvent debtor. Actual intent to defraud.</p> <p>Where one, for the' purpose of obtaining means to develop and improve his wild land, voluntarily conveys it to his wife, leaving himself insolvent, and opens near it a small store in his own name, buying goods on credit and furnishing therefrom all the supplies and money needed to clear and improve the land, this being with the acquiescence of the wife, the conveyance, though executed and recorded, is fraudulent and void as to subsequent mercantile creditors having no actual knowledge thereof. ,</p> <p>3. Injunction. Sale under trust-deed. Damages. Attorney's fee. Code 1892, <¡572.</p> <p>On dissolution of an injunction to stay a sale under a trust-deed, damages are regulated solely by j¡ 572, code 1892; and, where a sale is not threatened, and by the terms of the trust-deed cannot be made for two years, it is error to allow an attorney’s fee as damages, no delay or actual damage having resulted from the injunction. Williams v. Bank, 71 Miss., 858.</p> <p>4. Deed. . Consideration. Votumtary promise.</p> <p>A deed from a husband to his wife cannot be supported as on a valuable consideration, where it rests solely upon a previous voluntary' promise to give her at some time a sum of money.</p>

Froai the chancery court of Lauderdale county. Hon. W. T. Houston, Chancellor. Appellees, M. G. and I. K>. McElroy, filed this bill against the Peoples’ Building & Loan Association to enjoin the foreclosure of a trust-deed, and to cancel the same, and for an accounting.

Feoji the chancery court of Jones county. HoN. W. T. Houston, Chancellor. This is a bill by J. H. Bynum seeking a rescission of a contract for the sale of land and a cancellation of the deed. By-mun, at the time of his purchase, resided in Ellisville, Jones county, Mississippi, and Bonner, defendant, resided in Saun-dersville, in the same county.

From the chancery court of the first district of Coahoma county. Hon. W. R. Trigg, Chancellor. The opinion sufficiently states the facts. The deed from the auditor, under act 1888, did not confer any title where none was rested in the state, and was not intended to confer any title where there had been no precedent sale to the levee board.

<p>From the circuit court of Marshall county.</p> <p>HoN. EugeNe JOHNSON, Judge.</p> <p>The fact that Graves & Son did not pay sufficient privilege tax cannot affect a contract between H. L. Graves, as an individual, and Spencer. Besides, this is a contract between Graves and the trustee on one side, and Spencer on the other. 62 Fed. Rep., 4; Bishop on Contracts, § 627; Benj. on Sales, § 342; 42 Miss., 121. Even if the contract cannot be enforced while executory, it is valid when executed.; 9 Am. & Eng. Ene. L., 933; Smith on Contracts, 272. The objection to the validity of the contract cannot be made by creditors of one who has purchased from the delinquent. The section merely prohibits the wrongdoer, or those claiming under him, from maintaining a suit on the contract.</p> <p>Our court has never lost an opportunity to brand as invalid all contracts growing out of a business conducted by one in default for Ms privilege tax. See Deem v. Robertson, 64 Miss., 195; Bo%odre v. Carter, lb., 221; Pollard v-Insurance Co., 63 lb., 244; Meloer v. Clarice, 69 lb., 408; Williams v. Simpson, 70 lb., 113. It makes no difference that the controversy is between the delinquent taxpayer and the creditors of Spencer. The statute provides that suit shall not be maintainable in favor of any such person, on any such contract. The effect of this is to deny the holder of such contract access to the-courts for its enforcement. The question involved here is not so much as to the rights of the creditors of Spencer as to the right of Graves to ask the aid of the court in enforcing the trust-deed upon which he predicates his right to recover. An illegal contract cannot be made the basis of judicial proceedings. 36 Am. St. E., 303; 9 lb., 211.</p>

From the circuit court of Washington county. HoN. R. W. WilliamsoN, Judge. Appellee, the Hanover National Bank, of New York, having-recovered a judgment against the Delta Waterworks, Sewerage & Light Company, a corporation in Greenville, Miss., and execution having been issued and returned nulla Iona, brought this action against appellant, alleging that he had subscribed for $1,000 of the stock of said corporation, which remained unpaid.

Feom the chancery court of Harrison county. HoN. W. T. HoustoN, Chancellor. The opinion states the facts. Filed a brief, reviewing the course of legislation and the decisions in this state touching the competency of husband and wife as witnesses for or against each other, citing and discussing the following cases: Lochhart v. lather, 36 Miss., 68; Dimlap v. Hearn, 37 11)., 471; Stuhlmuller v. Ewvng, 39 II., 447; Hedges v. Aydelott, 46 Ih., 99; Reinhardts.

FroM the circuit court of Jackson county. HoN. S. H. Terral, Judge. This is an action brought before a justice of the peace in Jackson county, to recover sixty-eight dollars-damages for stock killed by appellant’s train. The evidence showed' that one heifer of the value of eight dollars was killed by defendant’s train near the state line between Mississippi and Alabama, but none of the witnesses could testify with certainty in which state it was killed.

From the circuit court *of Benton county. HoN. Eugene Johnson, Judge. Action begun May 6, 1893, by J. J. Spencer and wife against the Kansas City, Memphis & Birmingham Railroad Company, to recover of defendant the statutory penalty for failure to construct and maintain certain cattle guards and a crossing for a plantation road. Plaintiffs owned a tract of land, on which their residence was situated, adjoining the railroad on the north side.

Nrom the circuit court of the first district of Perry county. HoN. S. H. Terral, Judge. Appellant has been convicted of the murder of' one John Powe. The circumstances of the killing, as testified to by the accused himself, briefly stated, are as follows: Accused and deceased had quarreled over some trivial matter, and, according to the testimony of accused, deceased had threatened to kill him.

From the circuit court of Perry county. HON. S. H. Terral, Judge. Appeal by the state from a judgment sustaining a demurrer to an indictment. Held: or to show the result of the election, and because it did not appear whether the indictment was under the general or local option law. By § 1621, code 1892, courts take judicial notice of the result of local option elections. It was therefore unnecessary to aver that an election had been held.

FroM the circuit court of Warren county. HoN. Jiro. D. GillaNd, Judge. The case sufficiently appears in the opinion. The indictment is fatally defective in omitting the auxiliary verb ‘ ‘ did ’ ’ before ‘ ‘ feloniously kill and murder. ” As it stands, the indictment does not charge any act. Non constat but that it meant that accused intended to kill. ’ The defect is so fundamental that it can be made for the first time in this court. Newcomb v. State, 37 Miss., 383.

<p>Froh the circuit court of Choctaw county.</p> <p>Hon. C. H. Campbell, Judge.</p> <p>Appellant was convicted of arson, and appeals. The facts touching the only question passed on by the court are stated in the opinion.</p> <p>Mosely, by his own admission, was disqualified as a juror. He had an opinion which was so fixed in character that it would take evidence to remove it. The strength, nature and character of an opinion, and not the source from which it is derived, determines the competency of a juror. His belief that he could try the case fairly should have but little weight. It is for the court, not the juror, to judge as to his competency. The true test is whether the opinion is of such a fixed character, whatever the source from which it comes, as to require testimony to remove it. Cotton v. State, 31 Miss., 504; Alfred v. State, 37 lb., 296; Logan v. State, 50 lb., 269.</p> <p>A juror ~vyho will make oath that he is impartial is competent, notwithstanding the fact he has an opinion, if it appear, to the satisfaction of the court, that he has ‘ ‘ no bias of feeling or prejudice in the case. ” Code 1892, § 2355. The decision as to the competency of the juror must rest largely in the discretion of the trial court. Somebody must determine who is competent, and the statute has confided the matter to the circuit court. In the absence of a clear abuse of discretion, this court will not reverse. Certainly the legislature can confide as little, or as much, of the trial of such questions as it may see proper. The whole question might have been given to the final decision of the trial court, and the right of appeal cut off.</p>

From the circuit court of Washington county. HoN. R. W. WilliamsoN, Judge. Appellant was convicted of murder, and appeals from a judgment condemning him to be hanged.

Feom tbe circuit court of Oktibbeha county. PIoN. Newñan Gayce, Judge. Appeal by the state. The facts are stated in the opinion. 1. There is a large class of criminal acts which violate both federal and state laws, and there is another class as to which the jurisdiction is concurrent except where congress has acted. The federal statute has not made the act in question a criminal offense, therefore defendant is punishable under the state law. See Bish. Grim.

JOHN D. GillaND, granting bail. Appellee, Shrader, being in custody on a charge of murder, presented his petition to the circuit judge for enlargement on bail. The judge, after hearing the evidence, admitted him to bail, and from this judgment the state appeals.

From the chancery court of Leflore county. HoN. A. H. LoNGINO, Chancellor. In a certain suit in the chancery court of Leflore county, in which Feld & Silverberg, complainants, had procured an injunction to be issued against P. B. Portwood and others, enjoining the issuance of an execution on a judgment, a decree was rendered dissolving the injunction.

Feom the chancery court of Leflore county. Hon. H. C. Conn, Chancellor, presiding by interchange. The opinion states the case. If execution had been issued on the Portwood judgment before the claim of Feld & Silverberg was barred, the case would be parallel with Poney v. Maddox, 65 Miss., 193, which settles the right of plaintiff to use his claim in equity as a set-off against the judgment of defendant in attachment.

Feom the chancery court of Coahoma county. HoN. W. R. Trigg, Chancellor. The case is stated in the opinion. The composition agreement and what was done under it cannot vitiate the assignment and deed. The only fraud which will vitiate an assignment is fraud in its concoction. Bump on Fraudulent Conveyances, 352; Burrill on Assignments, 351; 1 Ann & Eng. Ene. L., 689; 80 Mo., 276; English v. Friedman, 70 Miss., 457.

From the circuit court of Jackson county. Hon. S. H. Terral, Judge. Action by Farnsworth Lumber Company against Liverpool & London & Globe Insurance Company on a policy of fire insurance.

From the circuit court of Lee county. Hon. Newnan Cayoe, Judge. Attachment by the.Philadelphia Investment Company against George B. Bowling. The sole determining question in this case is whether Bowling was subject to attachment under § 129, code 1892, on the ground that he had removed himself, or his property, out of the state.

Fbom the chancery court of Amite county. HoN. Claude PiNtard, Chancellor. This is a bill filed under § 4147, code 1892, by Amite county against T. C. Steen to establish title to a certain tract of sixteenth section school lands.

Fhom the chancery court of Harrison county. Hon. W. T. Houston, Chancellor. The opinion states the facts. The court below seems to have created a warranty against incumbrances, contrary to the express language of the deed, and to have worked out subrogation on such creation. Chapman v. Sims, '53 Miss., 154, merely holds that a quitclaim deed does not by itself imply a doubtful title, but it is not authority for the creation of an express warranty contrary to its terms.

Prom the chancery court of Warren county. HoN. Claude Plntard, Chancellor. Thomas P. Coates died without widow or children surviving him. He had a policy of insurance on his life for $2,000, payable to his executors or administrators. By his will he gave the proceeds of this insurance, together with other property, to appellee, Belle V. Worthy, who was also named as executrix of the will, and qualified as such.

<p>From the chancery court of Sunflower county.</p> <p>Hon. W. R. Trigg, Chancellor.</p> <p>For a statement of facts, reference is made to the opinion.</p> <p>The federal court was without jurisdiction. The defendant, Evers, an alien, had no right to remove the cause. King v. Cornell, 106 U. S., 395. The cause not being- removable on his application, as shown on the face of his petition, the jurisdiction of the state court was not in the least affected. Evers was a resident alien, Watson was a citizen of Illinois, and Bald win a citizen of the same state as W atson, and the requisite diversity of citizenship did not exist. Such citizenship must distinctly and explicitly appear of record. 13 Wall., 602; 109 IT. S., 278; 111 lb., 379. Jurisdiction of a United States court will not be presumed, as in the case of a common law, English or state court. The record must show the statement of facts. 19 How., 393; 94 U. S., 455; 120 lb., 225. On any writ of error or appeal, the first or fundamental question is that of jurisdiction, first, of the supreme court, and then of the court whence the record comes. Railway v. Swcm, 111 U. S., 379; Rich v. Merits, 134 U. S., 632. The want of jurisdiction need not be taken advantage of by direct attack, as by an appeal. The only question in the case is whether the federal court is shown to have had no jurisdiction. That appearing beyond question, all we contend for must follow.</p> <p>The validity of the final decree in the case of Watson v. Evers cannot be raised in this collateral proceeding. The remedy, if any, is by appeal. A court always has the power to determine its own jurisdiction, and this power belongs to the federal courts, which are usually recognized as courts of superior and not inferior jurisdiction, and, so far certainly as collateral attacks are concerned, their jurisdiction need not appear upon the record. Wood v. Mann, 1 Sumner B. (U. S. C. C.), 578; 6 Cranch, 267; 3 Pet., 193; 6 lb., 729; 10 Wheat., 192; 8 How. (U. S.), 586. This doctrine has been generally sustained by the state courts. 2 Greene, 94; 17 John., 272; 1 Wend., 126; 3 Selden, 254; 5 Eost, 299; 12 Am. & Eng. Ene. L., 267 («). Judgments of the federal court would possess no value if placed under the supervision and control of state courts wherever there was a difference of opinion between the state and federal courts in respect to the jurisdiction of the latter. The question of jurisdiction is not an incident upon the question of tire merits, but is in itself often the principal question in the case. 36 Barb., 242. The decision of a court of superior jurisdiction having the parties before it, on the question of its own jurisdiction, is conclusive of the question except on direct appeal. 1 Bailey (S. C.), 294; Grigncni’s Lessee v. Astor, 2 How. (U. S.), 319. The circuit court of the United States, on the motion to remand, must be conclusively presumed to have examined into the facts upon which the jurisdiction depended, and to have found the facts sustain the jurisdiction.</p> <p>Filed a suggestion of error, making, among others, the following points: Under the first clause of § 2, act 1875, the right of an alien to remove a cause alone arises. He has no right, because of separable controversy, to remove, and, therefore, by the petition actually filed by Evers, the cause was not removable in law. If not removable, it was, in legal contemplation, not removed, even if the right existed under the first clause of § 2 of said act and was not attempted to be exercised until it could be said a nonexistent right could in law be.availed of to forward an existent right either claimed or asserted in any way. 104 U. S., 107; 110 II., 60; 113/5., 597. It is true, in the case of separable controversy, the mere position of the parties on the record and face of the pleading is of no importance, but, in a cause not separable, the pleading determines the' right of removal. If, at the time of the suit brought, the cause itself was not removable under § 2 of the act, then no subsequent arrangement between plaintiff and defendant could create a right not before existing, or warrant the court in finding a separable controversy so as to maintain jurisdiction. The ques-lion is, could Evers, an alien, by any sort of proceedings, have removed the cause. The plain meaning in the language in the .case of King v. Cornell is that the alien one of the party defendants could not act alone, but that the petition for removal could only be presented by the party defendant, and no such petition was ever presented in this case. In that case the court was not considering what might not or might have been done; it was enough to determine the question of law by what had been done. The bill alleges that Watson, a citizen of Illinois, exhibited his bill in the state court against Baldwin, a citizen of Illinois, and Evers. The court cannot assume that there was separable controversy, and place Baldwin and Watson on one side, and thereby give rise to a right which did not and could not-exist; and, having withdrawn the cause from the state court because of a supposed separable controversy, maintain the cause in the federal court, not because of petition filed which was not warranted by law, but because the moving defendant might in some way effect the removal.</p>

Feom the chancery court of Bolivar county. HoN. W. B. Trigg, Chancellor. The opinion sufficiently states the case. 1. The instruments executed by the grocery company were void because not executed by its duly authorized officers, in accordance with its charter and by-laws. It was never contemplated that the corporation would do a losing business, and, therefore, the directors were never authorized to put an' end to the life of the corporation.

From tbe chancery court of Jackson county. HoN. W. T. HoustoN, Chancellor. Bill by the Ross-Meehan Brake Shoe Foundry Company, as assignee of a note secured by a lien on personal property sold the Pascagoula Ice Company.

From tbe chancery court of Clay county. HoN. Baxter MoFarlahd, Chancellor. Bill by O. C. Brothers, Jr., against John M. Judah to confirm a tax title. The land in question was sold on the seventh day of March, 1892, for the taxes delinquent thereon for the year 1891, and purchased by complainant. This appeal presents but a single question, and the facts in reference to it are stated in the opinion. There was a decree for complainant, and defendant appealed.

<p>From the chancery court of Quitman county.</p> <p>HoN. W. R. Trigg, Chancellor.</p> <p>The bill in this case was filed by appellants in 1890 to cancel 'a tax title of appellee to lots 5 and 11, section 35, and other land described in the bill. At the hearing a written agreement was read, stating that the defendant, Stone, had held actual adverse possession of lot 5 for more than three years next before the commencement of the suit, under his deed from the state, dated April 21, 1881.' There was no testimony whatever as to the possession of the other land. All the land was sold to the state, under the abatement act, in May, 1875, for the unpaid levee taxes due thereon for the year 1874. This was illegal. The law provided for sale under the abatement act only of lands held or claimed for taxes prior to 1874. The. opinion contains a further statement of the case. From a decree dismissing the bill complainants appeal. Section 539, code 1880, provides that: “Actual occupation for three years after one year from the day of sale of any land held under a conveyance by a tax collector, in pursuance of a sale for taxes, shall bar any suit to recover such land, or assail, such title, because of any defect in the sale of such land for taxes, or in any precedent step to said sale, saving to minors, ’ ’ etc.</p> <p>1. There can be no controversy as to the invalidity of the title acquired under a sale for the unpaid taxes of 1874 in May, 1875, by virtue of the abatement act. Gamble v. Witty, 55 Miss., 26; Dingey v. Paxton, 60 i7>., 1038; Sigmcmv. Dunéy, 66 Ib., 52'2.</p> <p>2. The defense, resting upon the three years’ occupation, is, by agreement, expressly limited to lot 5. The burden of showing such occupation rested upon the defendant, and there was no proof as to this except by the terms of the agreement, which applies only to lot 5. This agreement necessarily excludes the idea that the occupation extended to the other land. The expression of one thing is the exclusion of others. In the absence of proof, the presumptions of possession are always with the legal title.</p> <p>3. The court cannot take judicial notice of the location of lots in a section. Their location on streams is irregular, and they vary in size.</p> <p>4. Even if the levee taxes of 1874 were due, the lands should have been sold and conveyed to the levee board, and not included in a list of land sold to the state. Laws 1858, p. 33; Laws 1867, p. 246; Laws 1873, p. 150.</p> <p>5.o The lands were not of a class to be sold under the abatement act, and, for this reason, the sale is void. The three years’ occupation will not benefit a party holding a tax title to lands unlawfully sold to the state under the abatement act. This limitation was intended to cure defective titles and not void ones. It was not intended to dispense with a valid assessment and levy. Without these constitutional prerequisites, a tax sale is void. Yirden v. Bowers, 55 Miss., 1. This is the clear inference to be drawn, also, from the opinion in Jonas v. Flannikm, 69 Miss., 577. The views we contend for are not in conflict with the opinion in Patterson v. Dwr/ey, 68 Miss., 779, the defect in the tax deed in that case being only an irregularity in the assessment. Here there is no delinquency shown in the payment of taxes prior to 1874. There was no claim of title by the state under any sale, good or bad.</p> <p>6. There is not sufficient evidence that the land was sold to the state in May, 1875, or at any time. The deed from the auditor is not alone sufficient; there must be shown a duly certified list of lands sold to the state. There is no duly certified list in evidence in this case.</p> <p>7. The receipts in evidence show that all state and county taxes for 1874 were paid, and the sale was attempted to be made to the state for the nonpayment of levee taxes only. This was illegal. Sales to the levee board were to be evidenced by deed, and no sale was authorized to be made to the state for default in payment of levee taxes only. On this point we refer to Olay v. Moore, 65 Miss., 81; Patterson v. Durfey, 68 lb., 779; Bennetts. Ghaffe, 69 lb., 279.</p> <p>1. Defendant’s actual occupancy of lot 5 for more than three years after one year from the date of sale, is an absolute bar to complainants’ right to recover as to that lot. Code 1880, § 539. In Metealfe v. Perry, 66 Miss., 68, it was held that-proof of payment of taxes vitiated a tax title, notwithstanding section 7 of the act of 1860, and the lapse of five years after a sale thereunder. But that act, unlike § 539, code 1880, did not provide for possession in connection with the lapse of time after acquirement of the tax title. Under the code, the right to hold land depends upon the possession and the lapse of time thereunder, and not upon the validity of the original title. If this was absolutely void, or even if the taxes had been paid, the title is cured by the possession. Patterson v. Durfey, 68 Miss., 779; Jonas v. Flarmiken, 69 fb., 577. This is true, even if the land was held by the levee board and was not originally subject to sale for taxes. Oa/rlisle v. Yoder, 69 Miss., 384.</p> <p>2. Lots 5 and 11 were embraced in the same deed from the auditor, and the possession of one carried possession of both. The lots were contiguous, and defendant paid taxes on both, 37 Miss., 155; Ryan v. Railway Go., 62 lb., 162.</p> <p>3. The court takes judicial notice of the government survey, which shows that the lots are contiguous. Houghton v. Sartor, 71 Miss., 357.</p>

!From the circuit court of Washington county. Hon. R. W. Williamson, Judge. The opinion states the case. The question here involved has been settled in appellant’s favor. Harris v. Hutcheson, 65 Miss., 9. If appellant had instituted this suit upon the note in question, the same should have been registered.

Enoja the chancery court of the first district of Hinds county. HoN. H. C. CoNN, Chancellor. On May 1, 1869, John Nelson executed a trust-deed on certain property in the city of Jackson, to secure Robert Kells a debt therein mentioned, which debt was afterwards renewed. John E. Tarpley was made trustee, with power of sale. On May 2, 1877, Nelson executed another trust-deed, by which he conveyed this and other property to W. H. H. Green, as trustee.

Feom the chancery court of Pike county. HoN. H. C. CONN, Chancellor. Bill by the Chicago, St. Louis & New Orleans Railroad Company, lessor, and the Illinois Central Railroad Company, its lessee, against appellees to cancel a tax deed to land in Pike county, upon which is situated a certain gravel pit and the right of way of the railroad company for its main track and certain spur tracks.

From the circuit court of Monroe county. HoN. Newnan Cayce, Judge. Judgment for plaintiff. Defendant appeals. The opinion states the facts. 1. A consideration of the facts conclusively shows that the damage to plaintiff’s land was not caused by the railroad, and that the injury would have resulted if the railroad had never been constructed. The land is situated three-quarters of a mile from the road, and on the opposite side of the creek, in a pocket or bend of the stream.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor. The record in this case is very voluminous, and a number of questions are discussed by counsel that are not referred to by the court, except in a general way. In view of the opinion, it is only deemed necessary to state the following facts: On February 27, 1892, Jacob Holberg, a merchant of Macon, Miss., executed to B. J. Allen, as assignee, a deed of assignment, preferring certain creditors.

From: the chancery court of Copiah county. HoN. H. C. CoNN, Chancellor. The material facts, as found by the court from the record, are stated in the opinion.

From the circuit court of Warren county. Hon. John D. G-illand, Judge. The facts are stated in the opinion. The conduct of the conductor, in this case, was not only wilful and wanton, but heartless and cruel. The train was moving at a dangerous speed, somewhere between three and six miles an hour. The boy was only thirteen years old. The train was slowing up at the time, with a view to stop, which it would have done in a short time.

<p>From the circuit court of DeSoto county.</p> <p>HoN. EUGENE JOHNSON, Judge.</p> <p>Appellant was indicted under § 1145, code 1892, for obstructing a highway. The case was submitted to the court without a jury upon an agreed statement of facts, from which it appears that appellant, Blocker, placed an obstruction across a street within the corporate limits of the town of Olive Branch,, a municipality organized under chapter 93, code 1892. The board of mayor and aldermen of the town had passed an ordinance directing it to be closed, and had opened other streets for the use of the public, parallel to the street in question. Pursuant to the ordinance, which it is agreed was in all respects regular, Blocker closed up the street, and for this act was indicted. It further appeared that the street was, prior to the incorporation of the town of Olive Branch, an established public road, and, after such incorporation, remained an extension of such road through the town.</p> <p>The court below held that the action of the board of mayor and aldermen was no protection to the accused, and found him guilty, and from a judgment sentencing him to pay a fine he appeals.</p> <p>Throughout the United States, townships, counties, and other local authorities, have general control over the ordinary piiblic highways, and in incorporated towns this power, as respects streets, remains .with the corporate authorities. 2 Dillon on Mun. Corp., § 534, and cases cited. This is put at rest by chapter 93, code 1892, § 2939, which makes each municipality a separate road district; § 2945 reserves the right to close or vacate any streets or alleys, or any part thereof, and § 2947 gives them full jurisdiction in the matter of streets. Section 3000 provides for street commissioners, and defines their duties, and § 2946 empowers municipalities to exercise eminent domain in laying out, widening or changing streets. We find in no Mississippi case a conflict between the jurisdiction of counties and municipalities over roads, but in a very recent case from Idaho, in The Gity of Genesis v. Lotah Gounty, 36 Pac. Bep., 701, the court holds that the county commissioners cannot interfere with the streets of a village. See Railroad Go. v. State, 71 Miss., 253, which holds that the word “highway” does-not apply to streets of a municipality.</p> <p>Municipalities, as to streets, are subject to the operation and control of the general laws of the state; and county commissioners authorized to lay out and establish roads within a county, unless their authority is especially restricted in the acts of incorporation, have power to lay out and establish county roads which run through the incorporated town. 2 Dillon on Mun. Corp., 537.</p> <p>.Boards of supervisors have full jurisdiction over roads, fer-xies and bridges. Constitution 1890, § 170. This jurisdiction can be regulated by law, but cannot be taken away. Supervisors v. Arrighi, 54 Miss., 668. The statute creates each municipality a separate road district solely for the purpose of working the streets. All the statutes and the constitution should be taken together in ascertaining the intent. Potter’s Dwarris on Statutes, 128, 189. In the absence of a statute especially exempting municipalities from the general law of the state, I submit that they cannot exercise any authority over Mghways of the state which conflicts therewith.</p> <p>Public highways within a city are for the public, not simply .for the municipality within whose limits they may be, notwithstanding the legislature may have given it supervision and control of them. 24 Am. & Eng. Ene. L., 32.</p>

From the circuit court of Lincoln county. HoN. 'J. B. ChrismaN, Judge. Appellant was convicted of murder, and sentenced to imprisonment for life. His appeal presents a single question.

FroM the circuit court of Clay county. HoN. C. H. Campbell, Judge. Appellant has been convicted of murder, and appeals. The facts touching the only question passed upon by the court are stated in the opinion. ' The separation of a jury in a capital case conclusively vitiates the verdict. Our court repudiates the doctrine that a separa-tionis merely prima facie vicious, and holds that the jury should be kept free from liability to improper influences.

From the chancery court of Tate county. HoN. B. T. Kimbrough, Chancellor. The case is stated in the opinion.’ The validity of the dispositions in the will must depend upon the law as it was when the will took effect by the death of the testator. 8 Paige, 304; 4 Hill, 138; Sckouler on Wills, 10; 1 Bedfield on Wills, 359; 3 Pom. Eq. Jur., § 1162.; 1 Jarman on Wills, 290; 39 Ohio St., 596.

From the chancery court of the second district - of Carroll county. I£on. T. B. Graham, Chancellor. On December 21, 1879, C. M. Yaiden executed a will, wherein he gave lots 70 and 73, in the town of Yaiden, Mississippi, to his nieces, Lizzie Y. Hawkins, Alice Y. and Sallie C. Herring, fbr life, and, at their death, to their children in fee, and, in the event that they should die without issue, then the property was to go to the survivor or survivors.

From the chancery court of Noxubee county. HoN. T. B. Graham, Chancellor. The opinion states the case. It is not necessary, in this case, to discuss any general propositions in respect to the power of the chancery court to appoint guardians for minors, nor whether, in ordinary instances, the residence of the minor in the county constitutes a jurisdictional fact.

Feom the chancery court of Madison county. HoN. H. C. CoNN, Chancellor. The facts are stated in the opinion. Held: that the right of the state, or of the inhabitants of the township, rests solely, or even mainly, on national grant. Let us examine briefly the history of the legislation, national and state, relative to school lands.

Appeal and cross appeal from the chancery court of Tunica county. HoN. W. E. Trigg, Chancellor. The opinion states the case. 1. The contract of March 14, 1892, passed no title. It was purely executory, and referred to uncut lumber, and is identical in character with ordinary farming contracts for advances to make a crop thereafter to be shipped in payment for the advances. Allen v. Poole, 54 Miss., 323. 2.

From the chancery court of Noxubee county. HoN. W. T. HoustoN, Chancellor, presiding by interchange. The bill in'this cause was filed by J. A. Tyson, as guardian and next friend of Robert Gillespie, a lunatic, against R. Hauenstein, M. B. Graham, and G. H. Kimbrough, sureties on the bond of Joseph Bar dwell, former guardian of said lunatic, and the heirs of J. A. Minniece, a deceased surety.

FROM the circuit court of Copiah county. Hon. J. B. Chbisman, Judge. Appellee was elected marshal of the town of Wesson in 1891, for a period of two years. Under the charter and ordinances, he acted as marshal and street commissioner, and, in addition, assessed and collected taxes. He sued the town for five per cent, commission on certain taxes assessed by him for 1892, and three per cent, for collecting.

From the chancery court of Lauderdale county. Hon. W. T. Houston, Chancellor. The case is fully stated in the opinion. The right of Solomon to direct the application of his dividend cannot be questioned. MoLaughlanv. Oreen, 48 Miss., 175; Hiller v. Levy, 66 II)., 30; Woolen v. Buchancm, 49 lb., 386; Ghamypenois v. Fort, 45 lb., 355; Grider v. MeGoy, 33 lb., 445; Dennis v. IfcLawñn, 31 lb., 606. The fact that he directed the application is not denied.

From tbe circuit court of Pike county. Hon. W. P. Cassedy, Judge. The opinion states the case.

From the circuit court of Clay county. HoN. C. H. Campbell, Judge. Action by E. A. Buckner, section foreman, to recover for personal injuries sustained while operating a hand-car on the Georgia Pacific Railway, which, at the time of the accident, June 12, 1892, was under the management of the Richmond & Danville Railroad Company, as lessee.

Appellee recovered judgment against the railroad company in the court below for $275. Hence this appeal. The opinion sufficiently states the facts. We submit that the right of way obtained by condemnation includes the right to do everything within its limits necessary for the proper construction and maintenance of the railroad.

From the circuit court of Warren county. Hon. John I). Gilland, Judge. On March 20, 1894, appellant, C. W. Foster, an infant, by his next friend, William Foster, sued appellee for the death of his father, caused by the alleged wrongful act of defendant June 22, 1892. Defendant pleaded that the action was barred because not begun within one year after the death, as provided by § 663, code 1892.

From the circuit court of the second/district of Hinds county. HoN. J. B. ChrismaN, Judge. Appeal from a judgment in favor of appellee. The opinion states the facts. 1. In view of the unforeseen emergency and the perishable nature of the freight, it was the duty of appellant to get them to market as speedily as possible. It could not be anticipated that the strike would be controlled, and it was likely to be extended to the other roads.

From the chancery court of Warren county. HoN. Claude Piktard, Chancellor. This is a suit in chancery by the state revenue agent against J. M. A. Brennan, tax collector of Warren county, and the sureties on his bond.

From the circuit court of Claiborlie county. Hon. John D. Gilland, Judge.

From the' circuit court of Lowndes county. Hon. Newnan Cayoe, Judge. Action of ejectment by Morgan, Robertson & Co., claiming under a tax title, against appellee, Thomas G. Blewitt, Sr., former owner of the land. Judgment for defendants. Plaintiffs appeal. The facts touching the only questions passed upon by the court sufficiently appear in the opinion. 1. It was manifest error to hold that a defendant in ejectment can interpose an equitable defense.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Action by the city of Meridian against the Western Union Telegraph Company, to recover rent claimed to be due for the use, by the defendant, of the streets of the city for its telegraph poles.

From the chancery court of Monroe county. HoN. Baxter McFaruand, Chancellor. Bill filed in 1884 by P. H. Haughton against Mary E. Peevey,. for specific performance of an agreement to sell land. The bill alleges that in September, 1890, Mrs. Mary E. Sartor (now Mrs. Peevey), made and signed a written agreement for the sale of certain land, described in the bill, the agreement being in the following words: “This writing witnesseth that I have this day sold to P. Ii.

From the circuit court of Lee county. HoN. Newnan Cayce, Judge. As stated in the opinion, the former suit alluded to therein was begun by attachment, which was afterwards discharged, and an ordinary personal judgment was entered against the defendant. When that suit was instituted, the note under which the mule in controversy in this suit was seized was not due, but it became due before judgment, and was embraced therein.

From the circuit court of Newton county. HoN. A. G. Mayers, Judge. Appellees obtained an allowance of $100 under § 1387, code 1892, for arresting and delivering up for trial one Norman, who had killed one Denham. The county appeals.- The opinion contains a further statement of the case.

From the chancery court of Warren county. HoN. Claude Pintard, Chancellor. The facts are stated in the opinion. The recital of the consideration in the deed is always open to parol proof. 17 Am. & Eng. Ene. L., 438. Besides, Jno. A. Klein was not a party to the conveyance, and was at liberty to show its true consideration.

<p>From the circuit court of Leflore county.</p> <p>Hon. E. W. WixmaMSON, Judge.</p> <p>Action against the Georgia Home Insurance Company on a policy of fire insurance. The policy was issued to Mrs. E. Stein, insuring certain property which, at the time of issuance, was subject to two trust-deeds given by her, one in favor of the Delta Bank, of Greenwood, and the other in favor of W. H. Tribette. The latter contained the following, among other stipulations: “Any loss that may be proven to be due the assured, under the contract, shall be payable to W. H. Tribette.” The action was brought in the name of Mrs. Stein, for the use of Tribette, and the trial resulted in a verdict and judgment for plaintiff, and defendant appeals. The facts touching the only question passed upon by the court sufficiently appear in the opinion.</p> <p>By the terms of the contract, Tribette’s rights are restricted to those of Mrs. Stein. This would be so if the language had been general, and especially is it true where the language is: ' ‘Any loss which shall be proven to be due the assured, under the contract, shall be payable to Tribette. ’ ’ Such words are collateral to the contract, and do not constitute an assignment of the policy, but a mere appointment of the payee of the proceeds due thereon to the insured, and suit is to be in the name of the insured. Ostrander on Ins., § 278; 60 N. H., 164; 77 Ala., 194. This is recognized by appellee in bringing the suit in the name of Mrs. Stein, and by the further fact that proof of loss was made by her.</p> <p>The execution of the mortgage, November 3, 1892, to Tribette, and that of January 3, 1893, to the bank, worked a forfeiture of the policy. 76 N. C., 145; 79 Tex., 23; 21 Hun, 83; 68 Iowa, 578.</p> <p>We submit that a careful reading of the evidence will show that Drennan, the agent, is fully corroborated in his statement that be had no notice of the existence of the mortgage to the bank. If he ever had any information as to it, it was at a time long previous to the issuance of the policy, and it could not be presumed to have been in his mind when he issued the policy.</p> <p>The fact that the second mortgage was to secure a reloan of a part of the money paid on a previous mortgage will not prevent the forfeiture. 70Wis., 1; 8 Cush. (Mass.), 127; 10 Id., 444; Ostrander, § 91. There is no pretense of any subsequent contract with the company, and we submit there was no waiver. Such waiver must have the elements of equitable estoppel. Insurance Go. v. Matthews, 65 Miss., 301; Turnijoseed v. Hudson, 50 Id., 429. Mere silence with knowledge will not operate as a waiver. Insurance Go. v. Scales, 71 Miss., 975.</p> <p>It was the duty of Stein to disclose the existence of the mortgages. Under the terms of the policy, the insurer is not required to examine into the condition of the title. 98 Mich., 626.</p> <p>It is not shown that the information the agent had as to the mortgage was gotten while transacting the business for his principal. The rule requiring an agent to disclose to his principal his knowledge necessary to the principal’s protection, whensoever acquired, has this limitation, that the information must be so recent as that it may be inferred that it was present in the agent’s mind when he made the transaction. Mechera on Agency, §§719, 721; Goodloev. Godley, 13 Smed. &M.,233; Ross v. Houston, 25 Miss., 591; Insurance Go. v. Scales, supra.</p> <p>1. The power of the agent to waive the forfeiture is well established. Insitrance Go. v. JBoiudre, 67 Miss., 620; Rwara v. Insurcmce Go., 62 Id., 720; Insv/rance Go. v. Sheffy, 71 Id., 919. It is involved in the finding of the jury that the agent did have knowledge of the trust-deed to the bank. That this is a waiver of the condition against incumbrances, see 125 Ill., 361; 76 Cal., 51; 83 N. Y., 140; 36 Minn., 112; 33 Mich., 151; 26 la., 58; 32 Wis., 471; 55 Mo., 172; 107 N. C., 240; 88 Tenn., 369; 88 Ala., 606; 5 Wash., 524; 144 U. S., 439; 134 Pa. St., 570; ttmmmv. Innurance Co., 17 Am. St. 11., and cases cited. The cases are discussed in 60 Am. Rep., 690; 100 Am. Dec., 625; 1 May on Ins., §294; 2 Lb., 497; 1 Wood on Ins., 832, 837, 839; 2 Biddle, § 1060, note 2, and cases cited. We refer especially to Mitchell v. Jnxurcmce Co., ñute, 53. It matters not when or how the agent acquired the knowledge, if it was present in his mind at the time the policy was issued. 11 Am. & Eng. Ene; L., 328, and cases cited. 1 May on Ins., 152; 2 lb., 512. This knowledge may be implied from circumstances. 2 Biddle on Ins., § 1059. It is a metaphysical distinction to separate into different compartments of the agent’s brain the information conveyed to him while engaged in his principal’s business, and that otherwise received— a task impossible even to surgery.</p> <p>2. The incumbrance which, as we have seen, was. consented to by estoppel, was not increased or changed by the subsequent renewal of the trust-deed, arid the policy is not made void. The reasoning employed in reaching this conclusion is identical with that used in discussing concurrent insurance. See insurance Co. v. llolbarg, 64 Miss., 51; 15 Am. St. Rep., 696, and cases cited.</p> <p>3. For the same reason, the execution of the second trust-deed to Tribette did not work a forfeiture. By the terms of the policy, the company consented to an incumbrance in favor of Tribette to the amount of ten thousand dollars. That was the moral risk it assumed. There is uncertainty as to when the two thousand dollars was paid to Tribette on the trust-deed, but, in the absence of proof, the presumption will be in favor of the verdict, and we are warranted in the conclusion that the two thousand dollars was paid after issuance of the policy. The reloaning of money paid on the trust-deed did not increase the incumbrance beyond the maximum contemplated. See, in addition to above authorities, Insurcmce Co. v. Young, 86 Ala., 424.</p> <p>The proof shows, beyond all question, that Drennan, the agent, was familiar with the loans of the bank and the trust-deeds on the property insured. The verdict of the jury settles this, and the company is estopped to set up the forfeiture. 2 Wood on Fire Ins., § 526; 36 Wis., 67.</p> <p>It is also shown that the agent knew of the two thousand dollar trust-deed in favor of Tribette, which Mrs. Stein gave for the money reborrowed by her. When an agent is notified of an act which invalidates the policy, and the company does not elect to cancel it, it remains liable for the loss. A ratification of the act with full knowledge of all the facts, is equivalent to a precedent consent. 83 Ill.,”453. The rule is the same as that governing as to other or concurrent insurance. The company is bound either to indorse consent upon the policy, or cancel it when it knows of such insurance'. Failing to cancel, it will be treated as having assented. 2 Wood on Fire Ins., 1163; 55 N. EL, 110; 14 Barb., 406; 16 Ind., 260; 73 Pa. St., 342; 50111., 120; 25 Wis., 291; 53 Vt., 418; 21 Mich., 246'.</p> <p>The renewal of the trust-deed to the bank was a mere extension of the prior incumbrance, and did not increase the same or add to the risk. See, also, Insurance Co. v. IIoTberg, 64 Miss., 51.</p> <p>The arbitration and appraisement were made without the knowledge of Tribette, and are not binding on him. 5 K.. I., 394. Besides, the company cannot claim the benefit of the arbitration as to the amount of the loss, and, at the same time, deny its liability on the policy. 2 Wood on Fire Ins., § 456; 17 Ind., 131; 78 Pa. St., 478; 8 La., 508.</p>

From the chancery court of Warren county. HoN. Claude PiNtard, Chancellor. In 1891 certain real estate of appellant, Lum, in the city of Vicksburg, was given in by him to the city assessor for taxes. On June 1 the assessor reported to the board of mayor and aldermen certain property as being undervalued, including the property of Lum. The board, being then in session, ordered the city clerk to notify the property holders that it would meet July 5 to consider the report.

From the circuit court of the second district of Coahoma county. HoN. R. W. WilliamsoN, Judge. Mandamus to compel appellant, the sheriff of Coahoma county, to issue to one Dolan a license to retail intoxicating liquors.

From the circuit court of Warren county. HoN. JohN D. GtllaND, Judge. Held: on-the former appeal, that the statutory lien of a material man in favor of appellant had not been waived by taking additional security not inconsistent therewith.' The case being remanded, Edward Burns, the appellee herein, filed a petition, in which he set up the existence of the trust-deeds in which Butts and Dabney were trustees;…

<p>From the chancery court of the first district of Hinds county.</p> <p>Hon. H. C. Conn, Chancellor.</p> <p>The opinion sufficiently states the case.</p> <p>The evidence leaves no doubt that the firm of Durfey & Ascher, and both its members, wore insolvent. They were unable to pay their debts in the ordinary course of business. 159 Mass., 383; 72 Me., 489; 2 Am. & Eng. Ene. L., 172.</p> <p>It was not allowable for each member of the firm, while insolvent as a firm and as individuals, to give a trust-deed on his individual half interest in the firm assets to secure his individual debts. See Williams v. Gage, 49 Miss., 777; Bass v. JEs-till, 50 lb., 300; Irby v. Graham., 46 lb,, 425. In Schmid-la/pj) v. Carrie, 55 Miss., 597, a conveyance was upheld, the court saying that there was no showing made of insolvency at the time. The utterance of the court in Bank v. Klein, 64 Miss., 141, that insolvency would make no difference, is obiter dictum. The cases of Case v. Beauregard and Roach v. Bran-non, relied on by appellee, are inapplicable. See, also, Marks v. Bradley, 69 Miss., 1.</p> <p>There is no lack of authority to sustain the proposition that a transfer of the assets of an insolvent firm, or any member of it, to pay individual debts, is fraudulent in law, and fraudulent in fact, when coupled with proof of insolvency. 84 Iowa, 871; 45 N. J. Eq., 186; 106 Mo., 365; 13 Col., 329; 52 Ark., 556; 21 N. H., 462; 52 N. Y., 146; 101 lb., 265; 33 W. Va., 246; 15 Neb., 73; 29 Md., 311; 1 Jones on Mort., § 120; 114 Pa. St., 353; 60 Wis., 622; 80 Ala., 440.</p> <p>1. The proof wholly fails to support the charge that the trust-deeds were executed with intent to defraud. It is not disputed that the debts were in each case valid, and that the money borrowed went into the partnership. It purchased the property which the partners put into the firm when the partnership was formed. The bank officials knew of the existence of these debts, and, when the debt of the bank was contracted, Durfey & Ascher were in possession of all the property. There was no effort at concealment.</p> <p>2. Appellant’s contention is that it is not competent for a, member of a firm to mortgage his interest in firm assets for individual debts. It has been uniformly held by our court that firm creditors have no lien on firm assets, and that a member of the firm can, with the consent of other members of the firm, apply firm assets to individual debts. Freem. Ch. Rep., 231; 41 Miss., 138; Sehmidlappv. C%vrrie, 55/5., 597; Bcmlc v.' Klein, 64 lb., 141. The same doctrine is held in other states. Sigler v. Bank, 8 Ohio St., 511; 5 lb., 96; 11 Ohio, 394; -Case v. Beauregard, 99 IT. S., 119; 34 Kan., 35; 21 Conn., 130; 49 Wis., 379; 20 Tex., 688; 17 Ind., 463; 17 Am. & Eng. Ene. L., 971; 5 Johns. Ch., 320. The solvency or insolvency of the firm or the partners makes no difference. Bank v. Klein, supra; 21 Conn., 130; 5 Ohio St., 96.</p> <p>The giving of the trust-deeds by the partners on their respective interest in the firm property was not unlawful. Whitton v. Smith, Freem. Ch. R., 231; Freeman v. Stewart, 41 Miss.,, 138; Sóhmedlápp v. Gurrie, 55 lb., 597; Ba/nk v. Klein, 64 lb., 141; 34 Kan., 35; 8 Ohio St., 511; Case v. Beauregard, 99 IT. S., 119; 21 Conn., 130; 49 Wis., 379; 20 Tex., 688; 17 Ind., 463; 4 Jones (N. C.), 58. The cases all start out on the principle laid down by Lord Eldon in Ex parte Williams, 11 Yes., 3, and repeated in Ex parte Ruffin,’& lb., 119, that the equity of the creditors is merely that of the partners, anct if they consent to the application of the firm assets to pay bona fide debts either, of the firm or of the individuals, the firm creditors have no equity to enforce.</p> <p>Where, as in this case, the partners make, at different times, sale of their respective interests in certain partnership property, with intent to pass the whole property, it is, in effect,' a conversion of partnership into individual assets, and the rights of firm creditors are gone. 5 Johns. Ch., 320; 13 Mete. (Mass.), 283.</p>

From the circuit court of Warren county. HoN. John I). Gilland, Judge. Action by appellee on a domestic 1)111 of exchange drawn December 21, 1891, by the defendant, Cook, on and accepted by the John F. Halpin Co., due at thirty days, indorsed to plaintiff. ' At maturity, it was presented to the acceptor, and, payment not being made, it was protested, and,notice was given the drawer. On the trial, the bill, with the verified certificate of protest, was introduced by plaintiff.

FjROM the chancery court of the first district of Hinds county. Hok. H. C. Conk, Chancellor. Bill by C. L. C. Cass, Isabella A. Cass and C. L. S. Cass, the last two being minors, suing by their next friend, against Isaiah Davis, Nancy N. Davis, his wife, Sol. Dreyfus, Joseph Ascher and M. M. McLeod, to remove clouds from title.

F.rom the circuit court of the first district of Hinds count}'. HoN. J. B. ChrismaN, Judge. Bennie Brown was convicted of burglary, and appeals.

From the circuit court of the first district of Chickasaw county. I-IoN. NewhaN Gatce, Judge. Appellant was tried on an indictment for carrying a concealed weapon, and acquitted. The state appeals, and assigns for error that the verdict is contrary to law and the uncontradicted testimony of the accused himself. The facts appear in the opinion.

FROM the circuit court of Choctaw county. HoN. C. H. Campbell, Judge. The case is stated in the opinion. Evidence that accused paid the federal revenue license tax was incompetent. It had no tendency to show that defendant sold whisky, as alleged, to one liutledge. Failure to allege .and prove the venue was a fatal omission, and objection can be made here for the first time. As to the venue, see TIeggie v. Stone, 70 Miss., 39.

From: the circuit court of Tate county. Hon. Eugene Johnson, Judge. Appellant, Jim Brown, a negro, was convicted of the rape of Sallie Boyce, also a negro. The conviction rests mainly on the testimony of the woman. She was, to some extent, corroborated.

FjROM the circuit court of Yazoo county. HoN. J. B. Chbisman, Judge. Appellant was indicted for murder and convicted of manslaughter. The opinion of the court sets out the language used by the district attorney pro tern, in addressing the jury.

<p>1. Railroads. Speed. Noises. Negligence. Averments.</p> <p>There is no fixed rule as to the rate of speed at which a hand-ear may he run even at. street crossing's in a city or town, or as to the noise to he made in operating it. Rapidity of movement, noises and sudden appearances are common incidents of railroad operation, and one complaining- of hurt from these causes must show clearly a departure hy the defendant from custom and propriety to warrant recovery.</p> <p>•i. Same. Negligence. !!'•lightening horses. Sufficiency of a/oerments.</p> <p>Thoug'h a declaration ag-ainst a railroad avers that the defendant “carelessly, improperly and recklessly” operated its hand-car with a noisy, disorderly and boisterous crew, whereby plaintiff’s horse was frightened and she was injured, if the various acts complained of are stated, and these do not, separately or as a whole, show neg-lig-ence, the declaration is demurrable.</p> <p>3. Same. Negligence. Sufficiency of declaration. Case.</p> <p>Accordingly, a declaration, thoug'h averring- that defendant’s handcar, with a noisy, disorderly and boisterous crew, was being- run in a city, near the tracks of another railroad, more than fifteen miles an hour, when it suddenly came into view from beyond a hig'h plank fence near the crossing of a public street on which plaintiff was driving'; that, notwithstanding- the obstruction of view, the proximity of the other railroad and other surroundings making- the situation dang-erous, defendant failed to exercise ordinary care to avoid injury, and carelessly, neglig-ently and recklessly ran and operated the hand-car, and that these things were calculated to frighten a horse of ordinary gentleness, and did frighten plaintiff’s more than ordinarily gentle horse, whereby she was injured, does not show a cause of action.</p> <p>4. Same. Averring negligence. Acts unusual or clangorous. Pleading.</p> <p>In such case, no one. of the thing-s alleg-ed being per so negligence, and it not being- shown that the acts complained of were unusual or dangerous, or such as common prudence would condemn as being- calculated to frig-hten horses at that place, under the rule that allegations are to be construed most strongly against the pleader, and that acts of neglig-ence imist be distinctly averred, the declaration is insufficient on demurrer.</p>

From the chancery court of Noxubee county. Hon. T. R (traiiaSi, Chancellor. This is an appeal from a decree sustaining a demurrer to a bill and dismissing tie same.' The case, as made by the bill, is as follows: Complainant is a dealer in cotton, and, as such, had stored with defendant, Macon Compress & Warehouse Company, thirty-seven bales of cotton, for which she was given warehouse receipts.

From the circuit court of the first district of Coahoma county. HoN. R. W. Williamson, Judge. Action begun October, 1889, by A. M. Littlejohn against the Western Union Telegraph Company to recover for loss sustained through the delay of defendant in the transmission and delivery of certain telegrams.

FkoM the circuit court of the first district of blinds county. HoN. J. R. Chrisman, Judge. Action by J. A. Shingleur & Co. against the Western Union Telegraph Company, to recover for loss sustained through the delivery of an altered message. The case was tried before the court without a jury on an agreed statement of facts, the material parts of which are as follows: J. A. Shingleur & Co. were cotton buyers in Jackson, Miss., and had five hundred bales of cotton to sell.

<p>i. Code 1892, § 3011. Words omitted im, printiny. Effect.</p> <p>Between “i' and “the,” inline 7, \ 3011, code 1892, as published (dealing' with special assessments by municipalities), the words ‘ a majority of ” are omitted. These words appear in the code as adopted and on file in the office of the secretary of state, and it must control. Code 1892, l 2; Ex pm'te Wren, 63 Miss., 512.</p> <p>2. Municipality. Special assessment; protest. Code 1892, H 3011, 3012.</p> <p>Under 3011, 3012, code 1892 relating to local or special assessments, the privilege of preventing an improvement is not given to any one property owner. This can only be done by a written protest filed by “a majority of the resident owners of the property on said street, avenue, alley, sidewalk, or part' thereof, to be benefited by such improvement,” the words “a majority ofbeing- in the code as adopted.</p> <p>3. Same. Power. Special assessments. Validity of legislation.</p> <p>The validity of legislation such as the above sections of the code, providing for special assessments, and investing the local authorities with the discretion oí judging' as to the necessity for the improvements, and with power to levy and apportion the charge therefor, subject to certain just limitations to be interposed by the courts in proper eases, is unquestionable.</p> <p>4. Municipality. Power of court*. Abuse of discretion by local authorities.</p> <p>Courts are not invested with discretionary powers oí determining' when highways shall be improved. In the matter of local improvements and special assessments therefor, they can only interfere in eases of fraud or oppression, or some such wrong- as constitutes a plain abuse of discretion on the part of the local authorities. Macon, v. Patty, 57 Miss.. 378.</p> <p>5. Same. Notice to owners. Vue process of lato. Code 1892. 3011, 3013.</p> <p>Onder gg 3011, 3012, code 1892, three weeks’ notice, by publication, is required to be g'iven of the resolution declaring an improvement necessary, and the owners of the property affected are given twenty days after the passage of the resolution within which to file a majority protest, which, if filed, prevents the improvement. Not filing it. they are g'iven twenty days after the complete publication of the resolution within which to make the improvement, and, failing- in this, on five days’ final notice, the municipality is empowered to make it. Assuming notice to the owners to be necessary, this is sufficient.</p> <p>6. Special Assessments. Equality a/nd uniformity'of taxation. Constitution 1890, \ 112, not applicable.</p> <p>In the imposition of special assessments, as for making sidewalks, the rule of equality and uniformity prescribed by $ 112, constitution 1890, as to ordinary taxation, is not required to be observed. Daily v. Swope, 47 Miss., 367.</p> <p>7. Same. Necessity; municipal authorities judge of. Code 1892, g 3011.</p> <p>In respect to the special assessments provided for therein, $ 3011, code 1892. makes the municipal authorities the judge of the necessity for the improvements, and not merely of whether the same will be beneficial to the property owners. The right to impose such assessments does not rest solely on the idea of benefit to them. Macon v. Patty. 57 Miss., 378.</p> <p>8. Same. Distinction between streets and sidewalks. Police power.</p> <p>There is a wide distinction between the authoi'ity to impose special assessments for the improvement of streets and the improvement of sidewalks; the latter can he maintained under the police power. Mac mi v. Patty, 57 Miss., 378.</p> <p>9. Statute. Defectively expreHx&l. Duty of court, to uphold. Coda 1892, U 3011. 3012.</p> <p>Though a statute he awkwardly exiu-essed. and subject to criticism, it will he upheld if this can he reasonably done. The validity of 3011. 3012, code 1892. as to special assessments by municipalities sustained</p>

Fkom the chancery court of the second district of Coahoma county. Hon. W. R. Triuo, Chancellor. This is a bill by the Union Mortgage, Banking & Trust Co., . -designated herein as the Union Company, against Peters and Trezevant, trustees in a deed of assignment from Thomas H. Allen & Co., seeking to enjoin the prosecution of an action of ejectment. .