Volume 73 — Mississippi Reports

Prom the circuit court of Holmes county. Hon. C. H. Campbell, Judge. Judgment for defendant. Plaintiff appealed. The opinion states the case. The town marshal of Tchula had no authority, as constable, the execute the distress warrant without the limits of the supervisor’s district in which that town is located, and the purchaser at his sale thereunder acquired no title. Const. 1869, § 23 of art. 6; const. 1890, § 171; Heggiev. Stone, 70 Miss., 41.

From the circuit court of Yazoo county. Hon. «T. B. Ci-irisman, Judge. Judgment for plaintiff. Defendant appeals.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Judgment for plaintiff as to part of his demand. Plaintiff appeals. The plaintiff, P. Fairley, is superintendent of the state institute for the blind, and, as he testifies, also a practicing physician in the city of Jackson.

From the circuit court of Bolivar county. Hon. R. W. Williamson, Judge. The opinion states the case. The note, and writing on the back, constituted the contract, and parol evidence was inadmissible to explain it. The ground upon which parol evidence is admitted in the case of irregular indorsements is that the position of the name upon the paper is one of ambiguity.

From the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge. Held: and avers that the ginhouse and its fixtures constituted a material part of the property leased, and that the rental value of the same was $350 per year; that the same were, at the time stated, wholly distroyed by fire without fault or negligence on his part; that he had not expressly stipulated to pay rent therefor in such case; and…

From the circuit court of the first district of Hinds county. Hon. J. B. Ci-irisman, Judge. Judgment for plaintiff. Defendant appeals. This was an action brought by the appellee, as owner of the Sligo stock farm, for the penalty of $250, for which the appellant was alleged to have become liable to her under §3561, code of 1892, by reason of its failure to make and maintain a suitable crossing over its track for the necessary plantation road indicated in her declaration.

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. On the trial of the accused for murder, one of the instructions for the state was predicated of that crime.

From the circuit court of Perry county. Hon. A. G. Mayers, Judge. On the trial of the appellant upon an indictment for unlawfully selling and retailing spirituous liquors without a license, two of the jurors were introduced by the state, and allowed to testify, over appellant’s objection, as to the character, for truth and veracity, of one of the witnesses of the state whose character had been assailed.

From the circuit court of Perry county. Hon. A. G. Mayers, Judge. The charge against the appellant was selling intoxicating liquor without a license.

From the circuit court of Choctaw county. Hon. C. H. Campbell, Judge.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. The opinion states the case. 1. The lapse of the statutory period not only bars the remedy but also extinguishes the right in this state, and the parties to the controversy, on the examination of the appellant as a witness, were dealing with a substantial right and not a mere matter of procedure. The lapse of time had defeated the right of action as effectually as if the amount had been paid. 2.

From the circuit court of Warren county. Hon. John D. Gilland, Judge. The C. J. Searles Company, under assignment, from whom appellees claim, was a corporation doing a wholesale grocery and commission business in Yicksburg. It had a warehouse on Levee street, in which its stock of merchandise was kept, and had its office on Washington street, in the rear of Euhman’s store, where its books were kept and business transacted.

From the circuit court of the second district of Hinds county. Hon. J. B. Chrisman, Judge. The assignment in question was that of an insolvent merchant; was one with preferences, and included his entire stock of merchandise, but not all of his evidences of debt. The evidence showed that the debt of his brother, W. Gr. Redfield, a preferred creditor, was stated in the schedule of liabilities at several hundred dollars in excess of the true amount.

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. The appellant was a subscriber for ten shares of stock, of the par value of $100 each, in the Delta Insurance Company, domiciled at Greenville, Mississippi.

From the circuit court of DeSoto county. Hon. Eugene Johnson, Judge. W. C. Swoope employed W. H. Moody, county surveyor, to survey his plantation and divide the cleared land thereof into separate tracts for convenience in renting it. Moody did the work of surveying the plantation, and divided it into more than sixty small tracts or blocks, and for this part of his work was paid the fees allowed by law.

From the circuit court of Carroll county. Hon. C. H. Campbell, Judge.

From the chancery court of Leflore county. Hon. A. H. Longino, Chancellor.

From the chancery court of Lowndes county. Hon.. T. B. Graham, Chancellor. In November, 1892, N. Gross &. Held: in advance, at the rate of ten per cent, per annum.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. This was an action brought by Newton Jones against the defendant railway company for- personal injuries caused by the 'act' of its servants in making a kicking switch ’ ’ within the municipality of Jackson, the car thus switched having run over and crushed one of his feet in such manner as to necessitate amputation.

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

From the circuit court of the second district of Coahoma county. Hon. R. W. Williamson, Judge. The opinion states the case. The code of 1892 establishes as a ground of attachment the dealing in, buying or selling, directly or indirectly, future contracts or futures. Section 129 (9). Further than that, the statutes make the act criminal, and punish it by fine and imprisonment. Code 1892, §§ 1120, 1121.

From the chancery court of Warren county. Hon. Claude Pintard, Chancellor. The opinion states the case. 1. Held: to cover anything save local insurance in Vicksburg. 92 Am. Dec., 751, note. Fairly interpreted, the contract is assignable on its face. All of its parts must be considered together, and the construction contended for by appellant is a forced one that does violence to its spirit and intent.

From the circuit court of Scott county. Hon. A. G-. Mayers, Judge.

From the circuit court of Union county. Hon. Eugene Johnson, Judge. The opinion states the case. 1. Appellant was a carpenter, and the head of a family, and worked all the while as a laborer on appellee’s house, and his wages therefor were exempt. Code 1892, § 1963. A laborer is one who subsists by physical toil. Williams v. Link, 64 Miss., 641. The test of exemption is not the form of action pursued, but the consideration of the debt due. Ransom v. Duff, 60 Miss., 901.

<p>From the circuit court of the second district of Coahoma county.</p> <p>Hon. R. W. Williamson, Judge.</p> <p>The plaintiff’s declaration set out the following: That, on the twenty-third day of December, 1894, he delivered at the office of the defendant express company, in the town of Clarksdale, and to the agent in charge thereof, two certain packages, upon which he desired to prepay the charges from Clarksdale to the town of Tutwiler; that the said agent told him the amount necessary to prepay the same, which he thereupon paid to said agent, but called the attention of said agent to the fact that he was charging a sum in excess of the rate of the express company for transmission; that afterwards, on the same day, he met on the railway train the general agent of the express company, and ascertained from him that said charge was excessive, and the said general agent said the matter would be arranged; that afterwards, on the twenty-fifth of December, 1891, he went to the office of the express company, and told said agent what had been said by the general agent, and asked that the amount of said overcharge be paid to him, but this was not done; that afterwards, on or about the first week in January, 1895, he went to said express office at Clarksdale, upon business with said company, when, and at which time, the said agent of said express company in charge of said office informed him that he desired to refund to him said overcharge, and then and there paid the same to plaintiff, and required plaintiff to sign a receipt for the same, and when plaintiff signed and delivered said receipt to said agent, the said agent did then and there, immediately upon the reception of said receipt, and while plaintiff was there in the business office of said company, wilfully, wantonly, oppressively and wrongfully curse, abuse, insult and maltreat plaintiff, because plaintiff had demanded and received from said company the overcharge as aforesaid; thereby injuring and wounding him to his great damage; wherefore he demands judgment of said American Express Company for the sum of $1,950, and all costs.</p> <p>Among the grounds of demurrer to this declaration, assigned by the defendant, are the following:</p> <p>i£ 3. Because it appears on the face of said declaration that the act or acts of said defendant’s pretended agent of which complaint is made, and on which plaintiff relies as the basis of his suit, were not done or committed by him in the line of his duty to the defendant, nor within the scope of his, the said agent’s, employment by said defendant.</p> <p>‘ ‘ i. Because it does not appear from said declaration that the act or acts of said defendant’s pretended agent, of which complaint is therein made, and on which plaintiff relies as the basis of his suit, were done or committed by him with the authority, knowledge or consent of said defendant, and because it does appear from said declaration that all of the said acts so complained of and set forth in said declaration were the wilful acts of said agent, done by him in his own wrong, without authority from this defendant, and without its knowledge, consent or subsequent ratification, and were not within the line of said agent’s duty or within the scope of his employment by the defendant. ’ ’</p> <p>The declaration shows that the appellant was in the office and regular place of business of the express company for a lawful purpose, and was called upon by the company’s agent to receive and receipt for an overcharge that had been made by this same agent and paid by appellant, and that, after the receipt was signed, and because the appellant had asked for and received his legal rights, the agent thereupon immediately cursed and insulted him.</p> <p>It is not desired on behalf of appellant to question the authority of those cases which hold that the master is not liable where the servant was not acting within the scope of his authority, but had gone outside to find strangers with whom the master had no business, and with whom the servant had no business for his master.</p> <p>It the case at bar, however, the agent was transacting a business with which he had been charged, and was engaged with a person to whom the company owed a duty, and while the company confessed their wrong through an agent chosen by them to right the wrong, the agent inflicted a grievous injury upon the appellant because appellant received the benefit of what the principal admitted to be his due.</p> <p>The company selected an agent to tender to appellant the amount of money unjustly extorted from him, and, while engaged in the performance of this duty, and because of it, the agent proceeded to curse and abuse appellant, because he, the innocent victim of the company’s rapacity dared to accept justice.</p> <p>The doctrine that the master is not responsible for the words and acts of his servant when the servant disobeys his instructions, and commits a tort, is not disputed by the appellant, but this rule has no application to the state of facts here presented. It is true that the agent was charged with the duty of refunding the overcharge in a proper manner, and when he went outside of that he was disobeying the orders of his principal, but he was clearly engaged in the performance of an act which could be performed in two ways. He could have performed it in a legal manner, or he could have performed it, as he in fact did, in such a manner as to inflict damage upon the person with whom he was dealing. He did what he was authorized to do, but did it in an illegal manner. There is nothing in the nature of an express company, or of its duties to its patrons and the public, to exempt it from liability in such a case.</p> <p>Since the time of Lord Kenyon’s famous opinion in the case of McManus v. Orichett, 1 East, 106, the rule of respondeat superior has never been known to apply to cases such as this. The case of the Southern Express Oo. v. Brown, 67 Miss., 260, does not do so, for, in that case, as the opinion states, the plaintiff did not seek to show “ any wilful wrong; his effort was to show gross negligence.” The injurious act of the servant imposes no liability upon the master, unless it was something which his employment contemplated, or that, if done by him wilfully, he could have done it in his employer’s name. Cooley on Torts, 536; Williams v. Pullman Palace Oar Go., 3 So. Rep., 631.</p> <p>The rule seems to be that, when the agent, acting in the capacity bestowed upon him by the corporation and in discharge of some duty or employment directed by the employer, or incidental to his situation, does an act that causes damage, the corporation is responsible. But, where the agent does an act of his own fee will, without reference to his functions as an agent, the corporation is not responsible. For example, if some person should go into a banking house or insurance office, and there get into a difficulty in relation to business of the corporation with an agent or officer, and an assault and battery should ensue, it could not be seriously contended that the bank or insurance office was responsible for damages unless there was some recognition of the act. Ettvng v. Panic, 7 Rob. (La.), 459; Dyer v. Riley, 28 La., 6; Pierce on Railroads, 279; Fields on Corp., §§ 524, 623; Isaacs v. Railway, 47 N. Y., 122; Railway Go. v. Paum, 25 Ind., 72; Flower v. Railway Go 69 Pa. St., 210.</p> <p>The rule is best stated by Lord Kenyon in McManus v. Orickett, supra, as follows: ‘ ‘ 1. When the servant is in the performance of his master’s orders or authorized acts, and in the doing thereof conducts himself so negligently or unskilfully that an injury results to another, or his goods, then the doctrine respondeat superior applies, and the master will be liable in an action on the case. 2. That for the acts of the agent or servant wilfully and intentionally done without the command or authorization of the master, the servant is liable, and the master is not.” Story on Agency, § 456; 2 Kent’s Com., marg. notes 259, 260; Addison on Cont., 635; 1 Smith’s Leading Cases, H. & W. Notes, 560; Foster v. Essex Bank, 17 Mass., 479; Edwards on Bailments, 318, 319; Angelí on Carriers, §§ 541, 604; Richmond Twnpike Go. v. Yanderbilt, 1 Hill, 486; Hilbard v. H. 7. <& E. R. R. Co., 15 N. Y., 455; Cox v. Keahey, 76 Am. Dec., 385; Wrights. Wilcox, 19 Wend., 343.</p> <p>The following instances of its application illustrate the rule: Where a conductor by mistake gave a passenger a transfer which appeared on its face to have expired by limitation, and the conductor on the connecting line ejected him, he was entitled only to compensatory damages for the act of the servant, unless it was an authorized act, or there was a subsequent ratification. Muchell v. Rochester Railway Co., 86 N. Y. S. C.; 79 Hun, 32. Where a servant employed in the delivery of goods by wagon, drives out of the way of his route for the purpose of visiting his home, the master is not liable for injuries to a child because of the servant’s negligence in driving as he left his home. Chicago Consolidated Bottling Co. v. McKenzie, 51 111., 325. A contractor is not liable for an injury caused by bricks falling from an improperly constructed wall, after its completion, through the intentional or negligent act of an employee not acting within the scope of his employment, though proper scaffolding or guards to prevent brick falling had not been erected. Mayer v. Thompson-Hutchinson Buildmg Co. (Ala.), 16 So. Rep., 620. A master is not liable for the acts of a servant committed outside of the line of his duty. Western Union Tel. Co. v. Mullins (Neb.), 2 N. W., 880. Where a railroad brakeman threw a stone at a boy attempting to board a train, and struck a child near by, the company is not liable for the result of the injury, the act of the brakeman not being within his employment. Ga. Railroad & Banking Co. v. Wood, 94 Ga., 124.</p> <p>In McCoy v. McKowen, 26 Miss., 487, will be found a state of facts which are almost identical with those presented in this record. In the opinion in that case the court cites with approval McManus v. Crichett, supra, and Harris v. Nichol, 5 Munf., 483. See, also, N. O., etc., R. R. Co. v. Harrison, 48 Miss., 112, to the same effect. The doctrine of respondeat superior has been applied with most rigidity to railway companies, but it is held in that class of cases, that where the wanton and malicious act complained of was done by the servant in the discharge of his duty to and within the line of his employment by the master, the master is liable, although the plaintiff was a trespasser, but, if the servant was accomplishing some purpose of his own that had no connection with any such duty to his master, then the master is not liable. Railway Co. v. McAfee, 71 Miss., 70; Railway Co. v. Harris, II)., 74.</p> <p>The agent whose act is complained of in this case manifestly was not acting for his master, nor was he acting in the furtherance of the interests of his master. On the contrary, he gratuitously insulted appellant to gratify his personal malice, and consequently did not thereby impose liability upon his master.</p>

From the circuit court of Attala county. Hon. C. H. Campbell, Judge. The opinion states all the facts relating to the controlling question involved in the decision. On .the facts shown by the record the appellant should have been acquitted, and doubtless would have been, but for the erroneous instruction for the state, in which his union with Florence King was recognized as a valid marriage.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor. The opinion states the case. 1. The $2,000 of insurance money in excess of the $10,000 exempted by the statute were assets of R. C. Patty’s estate, and the complainants were entitled to a decree in respect thereto.

From the chancery court of Warren county. Hon. Claude Pintard, Chancellor. The opinion states the case. It is said that the meaning of the deceased cannot be shown by parol, and that we are bound to accept the construction which the appellees put upon the characters rather than that which the executor puts upon them.

<p>From the circuit court of the first district of Hinds county.</p> <p>Hon. J. B. Chrisman, Judge.</p> <p>Action by a father to recover damages for the death of his infant daughter. ,</p> <p>The injury complained of in this case occurred at a crossing-in a populous portion of the city of Jackson, and on one of its most frequented streets, several of which the track crosses in that portion of the city. At the point in question the track is laid in the middle of and along one of the streets that runs at right angles Avith those that it crosses. Between this point and the next cross street to the east thereof, there is a decided curve in the track, and the train that caused th’e injury, which was behind time, approached around this curve at Avhat numerous witnesses for the plaintiff declared to be a high rate of speed— that is to say, from fifteen to twenty miles an hour. The witnesses for the plaintiff further testified that no alarm was given by ringing the bell or blowing the whistle, and that the defendant’s servants in charge of the train were not keeping a proper-lookout in coining around the curve; that when the train was still three or four hundred feet east of the point where she stood, and she saw the smoke of the engine and knew that it was approaching, the nurse of plaintiff’s two children, an old colored woman, attempted to cross with the children from the north to the south side of the street, in the middle of which the track lay, in order to see some performing bears, which had drawn quite a crowd to the spot; that the nurse carried the younger of the children in her arms, and held by the hand the elder, who was a little girl of only three years of age; that when she had reached and was standing on the track, there was an outcry that the bears had gotten loose, and considerable excitement and commotion in the crowd, with people calling to her to get off the track, that the train was coming, and she became too terrified and bewildered to do anything; that at this juncture a negro'man, William Hulitt, sprang out of the crowd and dragged the nurse, with the infant that she carried, from the track, but the little girl she was leading, notwithstanding Hulitt’s second effort to save her also, was run over by the train and instantly killed; and that the nurse had ample time, after starting, to have crossed the track with the children before the passing of the train, and would have done so in safety but for the sudden alarm into which she was thrown.</p> <p>The defendant adduced evidence in conflict with a great part of the foregoing. On the cross examination of the plaintiff, he was interrogated by defendant’s attorney as to the age at which children became a help and source of income to their parents instead of an expense. Plaintiff’s counsel objected to this line of inquiry, and, the objection being sustained, the defendant excepted. After the recess taken by the court for dinner, the plaintiff’s counsel withdrew the objection, and offered to allow the examination to proceed, the court agreeing thereto, when the defendant’s attorney declined to do so, for the reason that the court, in the presence and hearing of the jury, had pronounced the evidence not competent, and the examination would be fruitless.</p> <p>The court gave the following instruction for plaintiff, which was objected to by defendant:</p> <p>“2. If the jury believe from the evidence that, at time and place of the accident in question, the defendant’s train was being run at an unlawful rate of speed, and that the death of the plaintiff’s child was caused by the negligence of defendant’s servants in charge of the train, then, plaintiff is entitled to recover, unless the nurse in charge of the child failed to use reasonable care and caution, and such failure directly contributed to the injury; and, in determining whether she was guilty of contributory negligence, the jury may consider the situation in which she then was, and judge of her conduct in the light of all the facts and circumstances surrounding her at the time.”</p> <p>The court refused to grant a peremptory instruction in favor of the defendant, and also refused the following instructions asked by defendant:</p> <p>“ 6. There was no imperative duty on the part of the engineer, even if he saw the nurse and child approaching the track, to stop the train, and wait for the woman to cross the track with the child. He had the right to believe, and act on that belief, that she was competent, and saw the moving train, and would wait for it to pass; and, though the jury may believe from the evidence that the train was moving more than six miles an hour, yet, if they believe from the evidence that the woman in charge .of the child approached the track from a point where she might have had an unobstructed view of the railroad, and might have known, or did know, of the approach of the train in sufficient time to avoid any injury from it by waiting for it to pass, the plaintiff cannot recover in the cause, and the jury will find for the defendant.</p> <p>“7. If the jury believe from the evidence that plaintiff’s nurse saw the train, and attempted to cross in front of it, or neglected to look out for it, when it could have been seen by her for a distance of four hundred feet from the place where the child was struck, she was guilty of contributory negligence, and her negligence is imputable to the plaintiff, the father of the child, and they will find for the defendant.</p> <p>“8. At street crossings, while the rights of the public and a railroad company are concurrent, the railroad company has the right of way, and the right to a clear track for the passage of its trains, and, when a person knowingly about to cross the track at a street crossing, approaches it from a point where he or she may have an unobstructed view of the railroad, and knew of the approach of a train in sufficient time to clearly avoid an injury from it, he or she cannot recover, as a matter of law, although the company may have been negligent in'performing a statutory requirement, or otherwise. ’ ’</p> <p>Exceptions were reserved to the action of the court in refusing these instructions. There were a verdict and judgment in favor of plaintiff for $2,250, and the defendant appealed.</p> <p>First, were the acts and conduct of the nurse such as to constitute contributory negligence; and, second, considering this negligence of the nurse, ought it to be imputed to the father of the child who is here suing for damages because of its being-killed. In treating- these questions, we assume that the train was going more than six miles an hour. Contributory negligence is the want of ordinary care to avoid injury from the act of another, and when one has failed to use such care, he is denied the right to recover, because the law will not undertake to apportion the blame between the wrongdoers. Railroad Go. v. McGowan, 62 Miss., 682. This was adjudged to be the law in a case where the code section was invoked against the railroad company. Section 3546 of the code of 1892 does not deprive the railroad company of this defense. Grawley v. Railroad Go., 70 Miss., 340; Railroad Go. v. Stroud, 64 lb., 784; Railroad Go. v. McGowan, 62 lb., 682.</p> <p>In this case the facts establish the contributory negligence of the nurse under the decisions of this court. Jobe v. Railroad Go., 71 Miss., 740; Orawley v. Railroad Co., supra; Railroad Go. y. Lee, 71 Miss., 895. An apt illustration can be found in the case of Sherry v. Railroad Co., 104 N. Y., 652. See, also, Norman v. Railroad Co., Ill N. C., 236. It is difficult to conceive of a case in which one could have been more negligent, and the bare statement of the facts is sufficient. It may be true that the nurse was alarmed by the surging crowd, and confused to a degree, but this cannot alter the question. She was negligent in undertaking to cross while the train was, to her knowledge, approaching. The truth is, she stopped on the track to look at the bears, and, being apprehensive that they were loose, stood still near the southern rail awaiting developments, and lost sight of the train she had seen.</p> <p>But it is insisted on behalf of appellee that the negligence of the nurse cannot be imputed to the father, and White v. Railroad Go., 72 Miss., 12, is relied on as authority for the position. It is claimed that, because the child, had she not been killed, could or might have brought the suit, the father stands in her shoes, and may recover also. The case at bar is distinguished from the one cited, by the fact that here the death was instantaneous. In Rmd/road Go. v. Gooh, 63 Miss., 38, it was said that the parent may sustain an action for injuries resulting in death for the time between the injury and death, and from the nature of the question there presented it impliedly follows that there can be no recovery by the parent where death is instantaneous, and there is no such intervening period. Section 663 of the code of 1892 is a precise rescript of § 1510 of the code of 1880 then in force. See, also, Meyer v. King, 72 Miss., 1.</p> <p>The nurse, who lived north of the scene of the injury, took the two small children, leading one and holding the other in her arms, and went along the street and over the crossing, to look at the bears south of the railroad, and around which a crowd had assembled, while the train was approaching. No better demonstration of incompetency could be given. She stood in looo pa/rentis for the time, and the question must be considered from the standpoint of the legal presence of the appellee. Had he, and not the nurse, led the child in front of the locomotive, no one could or would contend that any recovery could be had, and the difference between such conduct and that of the nurse is scarcely appreciable. In Glassey v. Bcdl/road Co., 57 Pa. St-., 172, it was held that though an infant of tender years may recover for an injury partly caused by her own imprudence, the father cannot. See, also, 48 111., 221; 19 Am. & Eng. Ry. Cas., 342; 16 S. W. Rep.,.800; 104 Mo., 648. But the precise question has been settled upon the most satisfactory grounds. In Schlenksv. Pacific By. Co., 23 S. W. Rep., 589, it was held that the negligence of a nurse, through which a child in her charge is injured, is imputable to the parents of the child. See, also, Bamberger v. Citizens’ Street By. Co., 31 S. W. Rep., 3 (8 Ala., 371), where the father had left his child with its grandmother, and she had intrusted it to its aunt, and, because the aunt allowed the child to stray off and get into danger, the defendant had judgment. In this case, West-brook v. Bailroad Go., 66 Miss., 560, is cited, among other authorities. See, also, Bcdlroad Co. v. Gravett, 20 S. E. Rep., 551, and Bcdl/road Co. v. Snyder, 24 Ohio St., 670.</p> <p>The verdict will doubtless be taken as establishing the fact that the train was running somewhat in excess of six miles an hour; but the statute fixing that maximum rate of speed in municipalities does not attach absolute liability if the statute is violated, nor afford protection if the statute is not, when the environments forbade a greater rate of speed.</p> <p>The infancy of an injured party does not change the degree of care and diligence required of a railroad company in the management of its trains. Barmon v. Bcdlroad Co., 24 Mo., 108. Nor are railroad companies, as a matter of law, bound to stop a train upon seeing a child on the track when in the charge of an adult person. Bailroad Co. v, Morgan, 82 Pa. St., 131, s.c. 16 Am. & Eng. Ry. Cas., 89. The following cases sustain this position fully, and treat the accident in such cases as unavoidable: Crystal v. Railroad Co., 11 N. E. Rep., 380; Railroad Co. v. Davis, 29 N. E. Rep., 425, 428; Bu/rns v. Railroad Co., 11 N. Y. S., 741. Thé peremptory instruction asked by defendant should have been granted. ,</p> <p>The sixth, seventh and eighth instructions asked by the defendant should not have been refused. Certainly the sixth was unobjectionable. The natural presumption is that a person nearing the track when a train is approaching, will stop to let it pass. And, under such circumstances, when a person sui juris sees the train and knows it is coming, and yet goes ahead to his own undoing, he ought not to recover. It is only in cases of apparent danger, not otherwise avoidable, that a railroad company must stop its trains. Besan v. Railroad Co., 23 Am. & Eng. Ry. Cas., 245; Bunting v. Railroad Co., 6 lb., 282; Rigler v. Railroad Co., 26 lb., 386.</p> <p>The seventh correctly stated the law. If the nurse saw the train, as she did, and attempted to cross in front of it, that was contributory negligence on her part, and it is imputable to the plaintiff. 71 Miss., 895; 68 111., 368; 71 Miss., 734; 52 lb., 808; 21 Am. Ry. Rep., 336; 88 111., 441; 28 Ind., 287; 65 Pa. St., 269; 27 Indi, 513; 72 Pa. St., 169; 40 Ind., 545; 28 Am. & Eng. Ry. Cas., 597; 15 lb., 403; 34 lb., 76; 39 La. An., 796; 60 Texas, 205.</p> <p>The eighth was fully warranted by authority, and should have been given. Zirnmerman v. Railroad Co., 2 Am. & Eng. Ry. Cas., 191; Railroad Co. v. Hm'ston, 95 IT. S., 697; Railroad Co. v. Ha/rt, 87 111., 529; Bleclber v. Railroad Co., 64 Mo., 484; lb., 480.</p> <p>The damages in a case like this are largely prospective, and necessarily committed to the discretion of the jury upon very vague and uncertain data, but it was improper for the court below to refuse to allow the defendant to show by the plaintiff, on cross examination, at what age children cease to be a source of expense and become one of income, since the damages recoverable are of a pecuniary nature, and there must have been a reasonable expectation of benefit from the life of the deceased child.</p> <p>1. We think the evidence showed quite clearly that the train was running at a greater rate of speed than six miles an hour, and that the servants of defendant in charge of it failed to sound the whistle and ring the bell in crossing the streets, as required by law. Code 1892, § 3547. Independently of the statutory requirements as to speed and signals, it is the duty of a railroad company, in running its trains through much frequented places, to observe due care to prevent accidents. £ ‘ The greater the danger, the greater the caution required. ” Railroad Oo. v. French, 69 Miss., 121. It was the duty of the defendant, in addition to observing the statutory requirements as to speed and signals, to keep a proper lookout. 4 Am. & Eng. Enc. L., p. 931, § 21, and authorities cited. The negligence of defendant was clearly shown.</p> <p>2. The nurse was not guilty of contributory negligence. She was not a trespasser in crossing the railway track where it ran down the middle of a public street. While she saw the smoke of the engine, and was aware of the approach of the train, the location of the smoke, and such observation of the train as she had, showed her that the train was five or six hundred feet to the eastward, and, as she says, she £ £ had plenty of time to get across. ’ ’ In the absence of any signal of danger, or other fact indicating to her that the law was being violated, she had the right to assume that the train would not run over these crossings at a dangerous or excessive speed, or more rapidly than six miles an hour, and in acting on this assumption cannot be said to have been guilty of contributory negligence. Insurance Go. v. Railway Go., 70 Miss., 119; Sullivan v. Railway Go., 117 Mo., 314; McGowans. Railroad Go., 62 Miss., 682.</p> <p>The sudden, alarming outcry and commotion that occurred when she had reached the roadbed, was what prevented her safe passage across the track, and the confusion and terror into which she was thrown do not constitute negligence, nor will the consequences of the accident be visited upon her, instead of the real wrongdoer, in view of this independent intervening cause that prevented the safe accomplishment of her purpose. 159 Mass., 493; Iloffmeister v. Railroad Go., 160 Pa., 568; Railway Go. v. Watkins, 26 S. W. Rep., 760; Beach on Con. Neg., §186; 55 Am. & Eng. Ry. Cas., 255; 116 N. Y., 470; 72 Wis., 530; 97 Ala., 165; 60 Wis., 323.</p> <p>The proof of contributory negligence must be clear and decisive. Valin v. Railroad Go., 55 Am. &Eng. Ry. Gas., 247, 250, 258; 22 lb., 391; Nesbitt v. Greenville, 69 Miss., 22; Railroad Go. v. Ives, 144 XT. S., 408; O'1 Mara v. Railroad Go., 38 N. Y., 445.</p> <p>When the negligence which contributes directly to causing the injury occurs after the danger in which the party has placed himself by his own negligence is, or, by the exercise of reasonable care, may be discovered by the defendant in time to avert the injury, the defendant is liable. Werner v. Railroad Go., 81 Mo., 368; Patterson’s Ry. Ac. L., § 56; McGuire v. Railroad Go., 46 La., 1543; Lay v. Railroad Go., 106 N. C., 404; 28 Am. & Eng. Ry. Cas., 589; Jamison v. Railroad Go., 63 Miss., 33; Kent v. Rail/road Go., 67 Miss., 608; Elmsley v. Railroad Go., 10 So. Rep., 41 (Miss.).</p> <p>In the case of Fulmer v. Railroad Go., 68 Miss., 325, it was held that, if in a populous town a detached car is sent on a flying switch rapidly and in violation of law, and one is injured •on a' crossing, proof of contributory negligence not being clear, it is error to instruct for defendant. This decision was in the absence of any statute against flying switches. In that case, as in the case of Sullivan v. Railroad Go., 117 Mo., 314, the court said: “The plaintiff might assume that the railroad company would not run its engines and cars in a populous town in flagrant disregard of law.” See, also, Raibi'oad Go. v. Summers, 68 Miss., 566; Rail/road Go. v. Turner, 71 Miss., 402.</p> <p>Of course, we are aware that, while it is negligence per se to violate the statute as to the rate of speed or signals in running trains, this does not take away the defense of contributory negligence, unless, as was here shown, the injury is occasioned by the employees of defendant after knowing of the dangerous position of the injured person, or unless there was such a wilful violation of the law and disregard of the risk to human life as to indicate recklessness or wantonness. The cases cited by the appellant on this head do not really apply to the different state of facts disclosed by the case under review. Under the circumstances, a special obligation was imposed upon the defendant’s employees to keep a lookout for persons, and to have the train under control, to guard against accidents. No such lookout was kept, and the train was running at a rapid and un - lawful rate of speed, without signals. This amounted to recklessness, if not wantonness. Railroad 'Oo. v. O'1 llama, 150 111., 580; Winters v. Railroad Go., 99 Mo., 509; Anderson v. Railroad Go., 42 Minn., 490; Hays v. Railroad Go., 70 Tex., 602.</p> <p>Recurring to the intervening and independent cause of the accident, it may be stated that one suddenly and unexpectedly confronted by peril cannot be expected to exercise the best judgment. Railroad Oo. v. Damis, 69 Miss., 444; Hutchinson v. Railroad Go., 19 Am. & Eng. Ry. Cas., 280; 64 N. Y., 130. “Where the injury can be traced to defendant’s negligence as its primary cause, concurrence of an outside cause will not relieve the defendant of liability.” Patterson’s Railway Accident Law, §39. See, also, 1 Sherman on Neg., §39; Cooley on Torts, top page 823; 60 Wis., 141; Buswell on Personal Injuries, 144.</p> <p>The fact that the engineer did not see the child in time to stop, affords no defense. That view of the matter ignores the negligence of the employees in failing to see. Home Insurance Go. v. Railway Go., 70 Miss., 119; Raihoay Go. v. Suddoth, lb., 265.</p> <p>The appellant cannot object to the refusal of the court below to allow its counsel to inquire of plaintiff as to the trouble and expense it would be to raise a child, and things of that kind, for two reasons: (1) When the objection was withdrawn and permission was given to pursue the inquiry, defendant’s counsel declined to avail of it; (2) the motion for new trial did not raise the point that the verdict was excessive, nor is it raised now in this court.</p> <p>Filed a lengthy suggestion of error, again urging the view that the appellant was relieved of liability by the contributory negligence of the nurse.</p>

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. Held: in the county of Hinds, in which said municipality is situated, a local option election under chapter 37 of the code of 1892, and that the result thereof, as reported by the commissioners appointed to hold the same, was against the sale of such liquors.

From tbe circuit court of Bolivar county. Hon. R. W. Williamson, Judge. This was an action brought by Hassie Jones to recover $900 damages of the defendant railway company because of the alleged negligent setting out of fire by its servants. There was a verdict and judgment in favor of the plaintiff for $200.

From the circuit court of Pike county. Hon. W. P. Cassedy, Judge. In this case the appellant was convicted of unlawfully selling- and retailing vinous and spirituous liquors, and sentenced to imprisonment in the county jail for ninety days and to the payment of a fine of $500 and the costs of prosecution, and to stand committed until the fine and costs were paid.

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

From the circuit court of Tunica county. Hon. K. W. Williamson, Judge. The appellant and one Jesse Harris were, at the September term, 1894, of the circuit court, jointly indicted for the murder of one Henry Mitchell. At the same term they were both tried on the indictment, convicted of manslaughter, and sentenced to five years’ imprisonment in the penitentiary.

From the chancery court of Sunflower county. Hon. A. H. Longino, Chancellor. In 1890 W. D. Peery purchased from W. H. Garnett & Bros, a tract of land, giving to them, in part payment of the purchase money, his note for $400, payable December 1, 1890. He afterwards sold the land to the appellee, Joe Sumner, for $1,200, whereof $200 was paid in cash, and the balance evidenced by Sumner’s five notes for $200 each, payable first November, 1891, 1892, 1893, 1894 and 1895.

From the circuit court of Yazoo county. Hon. J. B. Chrisman, Judge. The opinion states the facts pertinent to the controlling; question decided.

<p>Kailroads. Personal injuries. Action hy employee. Improper use of appliances.</p> <p>A railroad company is not liable in damages to one of its employees where the personal injury complained of resulted from his putting one of the appliances supplied by it to a use for which it was not intended, in an improper manner.</p>

From the circuit court of Lauderdale county. Hon. S. H. Terral, Judge. Held: the policies were collected, converted into money, and, if no appropriation had been made, as the bank’s witnesses show, then the rule is that the proceeds must be applied to all the notes past due equally, notwithstanding the fact that there may be an accommodation indorser on one of them, and the creditor cannot apply the money…

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

From the circuit court of Madison county. Hon. J. B. Chrisman, Judge. The opinion states the case. 1. The term “fireproof safe,” as used in the condition of the policy set up in the defendant’s plea, does not mean an indestructible safe. A thing may be in its nature incombustible, and at the same time susceptible of being destroyed in a fire.

From the chancery court of Attala county. Hon. T. B. Graham, Chancellor. On June 10, 1892, the administrator and heirs at law of S. Y. Hughston filed their bill of complaint for the enforcement of a vendor’s lien upon certain lands sold and conveyed by their ancestor to one N. J. Nail, on April 22, 1879. The two notes evidencing the unpaid purchase money bear the same date as the deed, and fell due, respectively, on November 1, 1880, and November 1, 1881.

From the circuit court of Leake county. Hon. A. G. Mayers, Judge. Action by Isidor Gross, a merchant, on an account for supplies, made by the husband of the defendant, Lizzie Pigg, who owned the plantation on which they resided and as well the work animals used by her husband in cultivating the same.

From tbe circuit court of Washington county. Hon. B. W. Williamson, Judge. The furniture in controversy was attached by appellees for rent in arrears, in February, 1891. Ham, the appellant, replevied it as his. On the trial in the magistrate’s court it was held that it belonged to May Lee, the tenant of appellees who occupied their house in which it was situated at the time of the levy. Ham appealed to the circuit court.

From the circuit court of the second district of Chickasaw county. Hon. Newnan Cayoe, Judge. This was an action of replevin instituted by Cole for the recovery of 12,000 white oak pipe staves valued at $75 per thousand.

Feom the chancery court of Noxubee county. Hon. T. B. Geaiiam, Chancellor. The opinion states the case. The section of the code of 1892, under which the $300 is claimed to have been personal property exempt from seizure or sale under execution or attachment, is as follows: “1971.

From the chancery court of Yazoo county. Hon. H. C. Conn, Chancellor. This proceeding was begun by the appellee by bill in equity for the cancellation of the deed of trust mentioned in the opinion. The opinion states the' case upon which that relief was granted. 1.

From the circuit court of Warren county. Hon. John D. Gtlland, Judge. Held: and correctly, that they were agents, and came within the condemnation of the statute. The case of Moses v. State, 65 Miss., 56, was not a case where one, on his own behalf, took out a policy in a foreign company. The only case approaching a construction of the statute is that of Sadler v. Insurance Oo., 60 Miss., 394.

From the chancery court of Madison county. Hon. H. C. Conn, Chancellor. Until September, 1885, the appellant, S. L. Uhler, resided in Pennsylvania, where the appellants, Anna M. Hunt, his sister, and Edward I. Hunt, his brother-in-law, still reside. On September 1, 1885, he traded his paper mill at Uhlersville, Pa., for a farm near Leesburg, Va., and borrowed $2,000 from his sister, Mrs. Hunt, to make the necessary cash payment on the trade.

From the circuit court' of Holmes' county. Hon. C. H. Campbell, Judge. This was an action brought by appellants, on December 21, 1894, upon a judgment in their favor, rendered by the circuit court of Holmes county, on November 28, 1887. The defendants (appellees here) plead the seven years’ statute of limitations, to which plaintiff filed two replications.

From the chancery court of Lafayette county. Hon. B. T. Kimbrough, Chancellor. In 1887 a stock law district was established in Lafayette county, by order of the board of supervisors, under authority of the act of March 5, 1878 (Acts, p. 305), which included the lands of the appellant.

Prom the circuit court of Pike county. Hon. W. P. Cassedy, Judge. The opinion states the case. By § 875, code of 1892, the general rule is that the successful litigant is entitled to recover costs, and, by § 80, the statutory damages can only be imposed upon a person who unsuccessfully appeals.

From the circuit court of the second district of Coahomacounty. Hon. R. W. Williamson, Judge. Petition by appellant, clerk of the circuit court, for mandamus to compel the defendant board of supervisors to allow and to direct the issuance of its warrant in payment of, an account allowed by the circuit court, one of the items of which was a charge of $150 for his fees in state cases where the state failed in the prosecution.

From the circuit court of Warren county. Hon. John D. Gilland, Judge. The opinion states the case. The omission of the concluding words of § 802, code 1892, from § 29 of the act of 1891 (Acts, p. 71), does not affect the liability of the county under the general scheme of the law, as indicated in both the code and the act of 1891. The liability arises out of the character of the money collected from the contractor.

From the circuit court of Monroe county. Hon. Newnan Cayoe, Judge. No express authority to relocate its line appears either in appellee’s charter or any other statutory enactment, and it does not arise by inference or implication. 6 Am. & Eng. Ene. L., p. 522; So. Pao. Railroad Go. v. Wilson, 49 Cal., 396; More-head y. Little Miami Railroad Go., 17 Ohio, 350.

From the chancery court of Union county. Hon. Baxter McFarland, Chancellor. The personal estate of his intestate being insufficient to pay debts, N. J. Parker, administrator of J. M. Wiseman, filed his bill against the widow and children of the decedent for the sale of all of the lands owned by him at the time of his death, save and except the northeast quarter of a certain section, on which the dwelling house was situated.

From the chancery court of Lee county. Hon. Baxter McFarland, Chancellor. The petition of the appellant was filed against the administrator and widow and children of one Holditch, who had died intestate, and whose estate had been declared insolvent.

<p>From the circuit court of Copiah county.</p> <p>Hon. J. B. Chrisman, Judge.</p> <p>The opinion states the case. The statute under which the appellant was convicted (§ 1004, code 1892) is as follows: “Any person who shall seduce and have illicit connection with any female child under the age of sixteen years,' of previous chaste character, shall, upon conviction, be imprisoned in the penitentiary not more than ten years'; but the testimony of the female seduced alone shall not be sufficient for conviction. ’ ’</p> <p>The crime of seduction was unknown to the common law, and is purely statutory. -The carnal knowledge of a child under ten years of age being rape under § 1281, code of 1892, there should have been an allegation in the indictment that the female seduced was either over or under that age, so that the accused might be informed of what offense he was charged. To charge seduction in the language of § 1004 of the code was not sufficient, since the language of that statute does not define the crime so as to distinguish it from the offense punished by §1281. Harrington v. State, 54 Miss., 490; Finch v. State, 64 lb., 461; Sullivan v. State, 67 lb., 351; Jesse’s Gase, 28 lb., 100; 1 Bishop on Crim. Pro., §610. There is no such thing in our law as the seduction of .a child under ten years of age, carnal knowledge of anyone being always rape, and it follows, therefore, that to charge seduction it is as necessary to allege that the female was over ten years of age as that she was under sixteen. For the accepted meaning of the word seduction, see People v. Glarrh, 1 Am. Crim. Rep., 660.</p> <p>The indictment was also uncertain in not charging that the accused was a man, or male person, and also in failing to charge sexual intercourse. The words illicit connection may relate to any unlawful dealing with another — as, the unlicensed sale of liquor, etc.</p> <p>The indictment was bad, for the reason that it charged the commission of the crime on a day subsequent to that upon which it was returned. Section 1356, code of 1892, only changes the rule in cases where time is not of the essence of the crime. Clearly the time of the commission of the act was of the essence of the crime here charged, for, if committed at a time subsequent to the sixteenth birthday of the female, the accused was not guilty, while he would be if it was committed before that day. The proof showed that the female was over sixteen years of age at the date of the crime as charged in the indictment. Wharton’s Am. Crim. Law (3d ed.), 165; Gommonwealth v. Maloney, 112 Mass., 283; Hodnett v. State, 66 Miss., 26; State v. Branham, 13 S. C., 389; Bobi/nson v. State, 29 Fla., 801; Rapalje’s Crim. Prac., § 211, and notes; 1 Bishop’s Crim. Prac., §§ 386, 387, 390, 103, 101.</p> <p>It was error for the court below, over the objection of the accused, to permit the district attorney to withdraw and leave the prosecution in the hands of private counsel. He could no more abdicate 'his functions or abandomhis post than the judge could. Edward?s Case, 17 Miss., 581; Durr v. State, 53 lb., 125; Turbeville v. State, 56 lb., 793; 1 Bishop’s Crim. Proc., §282.</p> <p>When the state’s case was closed there had been no proof of the corpus delicti, much less had it been brought home to the accused. At this stage of the proceeding the accused called upon the court to require the prosecuting counsel to put the female alleged to have been seduced on the stand as a witness, she being then present in court, in company with the state’s witnesses. The court refused to do so, greatly to the surprise of the attorney of the accused. It is not denied that some discretion rests with the prosecuting attorney as to what witnesses he produces on behalf of the state, but the extent of this discretion, save that it must not be exercised so as to work injustice, is still an open question. Morrow v. State, 57 Miss., 839. See, also, Bishop’s Crim. Proc., § 966c. In a well-considered opinion the supreme court of Pennsylvania has condemned the failure to produce the father of the prosecutrix in a seduction trial. Dice v. Gommonwealth, 1 Am. Crim. Rep., 562. The court say: “The commonwealth demands justice, not victims. This belongs to a class of cases where the whole truth should be brought out, if possible. ’ ’ The accused was unfairly forced to call the chief witness of the state.</p> <p>The instructions asked by the accused should not have been refused, and those given for the state should have been refused. The state failed to prove the corpus delicti. With opportunity for physical examination, there was no evidence offered to show that the person of the female had ever been entered, or that, if it had been, the act occurred before she was sixteen years of age</p> <p>1. The meaning of § 1004, code 1892, is perfectly clear, and the indictment is not bad because it omits to charge that the female seduced was over ten years of age. The fact of an indictment for seduction is itself equivalent to a charge of that fact, for, had she been under that age, the indictment would have been for rape, under § 1281. To bring the offense within the last mentioned section, an indictment must charge either that the act was committed with force or that the female was under ten years of age. This indictment does neither, and the accused could not have been misled. Mobley v. State, 46 Miss., 501; Bonner v. State, 65 lb., 293; Williams v. State, 47 lb., 609.</p> <p>2. The indictment shows that the persons were of different sexes in its general averment of the offense.</p> <p>3. The Mississippi adjudications cited by appellant in condemnation of the action of the district attorney in leaving the conduct of the trial to other counsel, are not in point. Burr v. State, 53 Miss., 425, was a case where three private counsel went into the grand jury room with the witnesses. In Turbeville v. State, 56 lb., 797, the judge absented himself during the trial. The matter is largely one of discretion with the trial judge. 1 Bish. Crim. Proc., § 284; Oommonwealth v. Railroad Go., 15 Gray (Mass.), 447; State v. Russell, 26 La. Ann., 68.</p> <p>4. It was discretionary with the prosecuting attorney what witnesses should be examined on the part of the state; and to have required him, in this case, to put the female alleged to have been seduced on the stand would have been almost, if not quite, equivalent to compelling him to enter a nolle prosequi. The rule in such cases is laid down in Morrow v. State, 57 Miss., 839, and it is clear therefrom that error cannot be predicated of the action of the court below in this respect.</p>

From the circuit court of Union county. Hon. Eugene Johnson, Judge. Action by Jones to recover of the defendant railroad company the statutory penalty of $250 for failure to maintain a cattle guard, as required by § 3561, code 1892.

From the circuit court of Oktibbeha county. Hon. Newnan Cayoe, Judge. This was an action by the appellants to recover usurious interest paid to appellee on certain debts for borrowed money, a forfeiture of all the interest paid, amounting to over $700, being insisted upon in the declaration.

From the chancery court of Leflore county. Hon. A. H. Longino, Chancellor. This was a proceeding brought by the appellees for a partition of the lands in controversy, in which they owned an undivided one-fourth interest, and an accounting as to rents. The bill shows that the defendant, Mrs. McHenry, owned a three-fourths interest in the land, and was, and had been for some years, in the adverse possession of the whole tract.

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

From the circuit court of the second district of Carroll county. Hon. C. H. Campbell, Judge. The statute in question is as follows: “1592.

From the circuit court of Tallahatchie county. Hon. R. W. Williamson, Judge. The opinion states the case. “By the common law, continuous absence beyond seas for seven years, during which time nothing is heard from the party by those who are likely to hear, death is presumed, as a presumption of law.

From the chancery court of DeSoto county. Hon. B. T. Kimbrough, Chancellor. This was a proceeding by injunction brought by the appellee on September 22, 1894, as purchaser under a duly recorded trust deed, to enjoin two subsequent creditors of the grantor, one from selling the land under a judgment in attachment against the grantor, and the other from foreclosing his deed of trust given by the grantor on the same land, and for the cancellation of said deed.

From the chancery court for the first district of Carroll county. Hon. T. B. Graham, Chancellor. The original bill, brought by the state revenue agent for the use of the county, demanded $419.17 for the year 1886, and $573.82 for the year 1887, county taxes assessed and not collected or properly accounted for.

From the circuit court of Leflore county. Hon. K. W. Williamson, Judge. George Morris, an employee of A.- H. Barrett & Son, a concern doing a milling business in Greenwood, Miss., was liable for a street tax of $3, under, an ordinance of that town; was reported delinquent by the town marshal, and prosecuted in the mayor’s court, where he was convicted and fined. On his appeal to the circuit court, the same result was reached.

From the chancery court of Wilkinson county. Hon. Claude Pintard, Chancellor. , This was a proceeding by the appellee, Aaron, against the appellant, as a nonresident, by attachment in chancery, to compel an accounting in respect to certain cotton delivered to him by one Hills, a debtor of complainant, and for a decree in favor of: complainant for so much of said cotton or its proceeds as might be necessary to satisfy his demand against Hills, to. secure which the complainant…

From tbe circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The appellant and judgment debtor, Chapman, was an employee of the garnishee, the Alabama & Vicksburg Railway Company, working for wages at $81 per month, payable monthly. The railway company was garnisheed on April 8, 1895, when one month’s wages were due. This money was retained by the company.

From the circuit court of LaFayette county. Hon. Eugene Johnson, Judge.

From the circuit court of Hinds county. Hon. J. B. Chrisman, Judge. The opinion states the case. The merits, as set out in the second case, not having been, heard under the first declaration, the court should not have found for appellee on the question of res adjudicata. £ £ Only judgments in which the merits might have been tried are conclusive. ” Johnson v. White, 13 Smed. & M., 584; Mosby v. Wall, 23 Miss., 81. The facts must have been directly in. issue.

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

From the circuit court of Winston county. Hon. A. G. Mayers, Judge. The appellant was convicted of the murder of one Callahan. There was no eyewitness to the killing, and, on the trial, evidence was introduced tending to prove his defense of an alibi.

From the chancery court of Pike county. Hon. H. C. Conn, Chancellor. The motion to correct the decree of reversal rendered at the March term, 1895, was filed during the October term, 1895, of the supreme court.

From the circuit court of Warren county. Hon. J. D. Gilland, Judge. This action was brought by First National Bank of Vicksburg and C. J. Searles Co., a trading corporation doing a mercantile business in the city of Vicksburg, against appellant, to recover upon a policy of insurance for $2,500 to C. J. Searles Co., issued March 3, 1894, upon its stock of goods, which was destroyed by fire June 15, 1894.

From the circuit court of Coahoma county. Hon. R. W. Williamson, Judge. This action was begun on November 5, 1891, by attachment as for a debt due amounting to the sum of $1,448.95.

From the circuit court of Newton county. Hon. A. G-. Mayers, Judge. This was an action by M. Levy & Sons against I. I. Barber on an injunction bond given to restrain a sale under a deed of trust, for the statutory penalty of five per centum on the amount of the debt, awarded by § 572, code 1892, by way of damages on the dissolution of an injunction granted for such purpose. The declaration contained no averment as to the value of the property the sale of which was enjoined.

<p>From the circuit court of Clay county.</p> <p>Hon. C. H. Campbell, Judge.</p> <p>The provision of the constitution of 1890 (§ 193), relied on by the appellant, is that under which railway employees have the same rights and remedies allowed to other persons, notwithstanding the fact that the inj ury may have resulted from the negligence of a superior agent or officer, or of a fellow-servant engaged in another department of labor, etc. It concludes as follows: “Where death ensues from any injury to employees, the legal or personal representative of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons, . . . and this section shall not be construed to deprive any employee of a corporation of any right or remedy that he now has by the law of the land. The legislature may extend the remedies herein provided for to any other class of cases. ’ ’</p> <p>The suit was brought by the appellant, the widow of John S. McVey, as his administratrix. The declaration alleges that the plaintiff was appointed administratrix for the purpose of bringing the suit, and concludes with the allegation that she and her child were his only heirs, and that his estate owed no debts. It does not allege that the deceased employee survived the accident; indeed, it alleges that he was killed in the same. The evidence showed that he was dead when found under the wreck, a few minutes after the accident. The court gave a peremptory instruction to find for the defendant. Appeal by plaintiff.</p> <p>Section 193, constitution 1890, embraces two classes of employees — those who could have sued at common law, without the aid of the constitution, and those who could not. This is made plain by its concluding words. In Railroad Go. v. Hunter, 70 Miss., 471, where it was held that, when an employee was killed, it was necessary for the administrator to bring the suit, it was said that the constitution prescribes the remedy in the class of cases it creates. In the class of cases which it did not create, but which are embraced, in it, the remedy provided by it is, under the above language, concurrent with any right or remedy which existed before. The constitution plainly meant to enlarge, not restrict or diminish, and at the same time, as far as possible, to harmonize the laws. Hence, in all cases “where death ensues,” the administrator, it says, shall have the right to sue; and, as the constitution is mandatory that it shall not be construed to take away any rights then existing ‘ ‘ by the law of the land, ” it is plain that the administrator can assert any right which before existed by this law of the land.</p> <p>The declaration and evidence bring the case within that class of cases where a recovery could have been had before and without the aid of the constitution. It does not belong to that class where new rights were created, but to^ that class where an additional remedy was provided and old rights were preserved. It charges that the death of McVey was caused by a defective track and too heavy an engine. If this is true, the defendant would be liable, in the absence of the constitutional provision, for the master is bound to furnish safe and suitable 1 ‘ ways and appliances.5 ’ The section of the constitution cited covers every class of employees and every class of injuries to them, whether death results or not, and whether the injury was actionable anterior to the constitution or not. There were cases where an injury or death of an employee was actionable before the constitution, as in case of a defective track, unsafe cars, ways and appliances, etc. — in fact, in all cases where the injury was not caused by the negligence' of a “ fellow-servant.” While the primary object of the constitution was to enlarge and extend the right of recovery to nearly all cases where the injury resulted from the negligence of a fellow-servant, yet, in doing so, it clearly embraced and covered the whole law of injuries to employees. It made the whole law as to all classes and kinds of injuries to employees and former rights and remedies were only preserved by its express proviso. Without this proviso, all former rights and remedies would have been superseded and repealed by substitution, under a well-known rule of interpretation. Swanv. Buck, 40 Miss., 268; Railroad Go. v. Weiner, 49 Miss., 725; Myers v. Ma/rshall Ooimty, 55 Miss., 344. The constitution ought not to be construed as to have one rule for one class of cases coming under it and another rule for another class. It is clear that, as to all injuries to employees which were not actionable before the constitution was adopted, it creates the right of action, and where a law creates a right and prescribes the remedy, that remedy is exclusive. Brown v. Beatty, 34 Miss., 227. Hence, as to this class of injuries, when death results, the suit not only may, but must, be brought by the administrator. As to the other class of injuries — those which antedated the constitution — the suit may be brought by the administrator; but this is not compulsory, for it is provided that “this section shall not be construed so as to deprive any employee or his legal representative of any right or remedy which he now has by the law of the land. ’ ’ The only way to bring about harmony is to hold that, under this section, suit may be brought in all cases in the name of the administrator, and that, when this is done, the rights of the father, mother, widow and children and creditors are all merged in the administrator. An administrator may join a claim due to him individually with a count for one due to him as administrator. This was done in Railroad Go. v. Oook, 63 Miss., 38. This is the effect of the case at bar, where the widow, having the right to sue on both claims, combines them, and alleges that she and her child are the only heirs, and that there are no debts of the estate. See, also, McMaster v. Raib'oad Go., 65 Miss., 264; Railroad Go. v. Barber, 44 Am. & Eng. Ry. Cas., 523; Railroad Go. v. Grudup, 63 Miss., 299; Rucks v. Taylor, 49 Miss., 560; Lea v. Hopkins, 7 Pa. St., 385; Stafford v. Gold, 9 Pick. (Mass.), 532.</p> <p>2. The fact of instantaneous death is not a defense, under the constitution, in any case. The purpose of §§ 2078, 2079, code 1880, is said, in Railroad Go. v. Pendergrass, 69 Miss., 425, to have been simply to preserve pending suits or existing rights that the deceased had in his lifetime. But such is not the scope and object of § 193 of the constitution. It does not deal with estates or the administration of estates. Its purpose was to fix definitely the limits within which corporations should be liable for injury to their employees, and then, incidentally, to designate a person in whom the right to sue shall be vested when death ensues, and, also in its caution, to preserve existing rights and remedies. The right of the administrator does not depend upon whether or not death is instantaneous, but whether or not it ensues from the injury. Short v. Railroad Go., 69 Miss., 848.</p> <p>3. Although appellant’s husband was dead when found a few minutes after the injury, his surroundings, when found, and the appearance of his body, were not such as to necessitate the conclusion of instant death, and that question should have been left to the jury. In Railroad Go. v. Pendergrass, the employee was ground to pieces by the car wheels during the continuance of the accident. Bancroft v. Railroad Go., 11 Allen (Mass.), 34; Fellow v. Railrqad Go., 21 Am. & Eng. R. R. Cases, 485; Railroad Go. v. Bowles, 71 Miss., 1004.</p> <p>The maxim, actio personalis moriiur cum persona, is a barbarous one, and has never commended itself to the best authorities. Webb’s Pollock on Torts, pp. 71, 73, 77; Finley v. Ghirney, 20 Q. B. Div., 494, 502.</p> <p>This suit is one brought by the administratrix of the deceased employee, and it is not alleged or shown by the evidence that he survived the injury. On the contrary, his death appears to have been instantaneous. In such case no right of action survives to his personal representative. Railroad Oo. v, Pendergrass, 69 Miss., 425.</p>

From the chancery court of Bolivar county. Hon. A. H. Longino, Chancellor. This was a proceeding by the appellee, Buford, against the appellants, the Louisville, New Orleans & Texas Railway Co. and Abram Williams and William Lightfoot, to remove clouds upon his title to the southwest quarter of section 25, township 24, range 7, in Bolivar county.

From the chancery court of Copiah county. Hon. H. C. Conn, Chancellor. This was a proceeding by Mrs. O. Y. Hall for the cancellation of a deed made by one Fugate to the defendant, Mrs. J. A. Lyebrook, then Mrs. J. J. Cason, on April 8, 1885, as a cloud upon her title to the land in controversy.

From the chancery court of Lafayette county. Hon. B. T. Kimbrough, Chancellor. Bill for injunction. Decree dissolving the injunction. Appeal by complainant. The opinion states the case. The appellee, although liable therefor, failed to pay the privilege tax required of foreign building and loan associations by the act of 1890 (Laws, p. 10), and, while so in default, entered into the contract evidenced by the Kershaw note and trust deed.

From the circuit court of Yalobusha county. Hon. Eugene Johnson, Judge. The appellee was arrested, tried and convicted before the police justice of the city of Water Valley, on an affidavit charging him with the unlawful sale of liquor within the corporate limits of that municipality. He appealed to the circuit court, where his demurrer to the affidavit was sustained, and a judgment entered discharging him from custody. From that judgment the municipality appealed.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. The two acts of 1882 (Laws, pp. 19, 22) and the act of 1881 (Laws, p. 21) are not repealed. In other words, the subjects of those acts are not so “revised, consolidated and re-enacted” in the code of 1892 as to be repealed by § 3 of that code.

From the chancery court of Wilkinson county. Hon. Claude Pintard, Chancellor. This was a proceeding by bill in equity, on the part of appellant, for the foreclosure of a deed of trust given by one Maxwell, to secure a promissory note in favor of J. H. Jones, of which appellant was assignee, and to compel the appellee, Mount, to surrender for sale by a commissioner, certain cotton that he had purchased from Maxwell, alleged to have been subject to the deed of trust.

From the circuit court of Adams county. Hon. W. P. Cassedy, Judge. Replevin by appellant against appellees to recover certain vehicles, of which it claimed ownership.

From the circuit court of Jones county. Hon. A. G. Mayers, Judge. Trespass by Gunter against Jefcoat and wife, for wrongful eviction from certain lands of Mrs. Jefcoat, during his one year term, and defendants’ conversion to their own use of his ungathered crop thereon.

From the chancery court of Adams county. Hon. Claude Pintard, Chancellor. The opinion states the case. 1. Held: in many states in recent years, that a general verdict is at least prima facie evidence that all issues were found in favor of the successful party. Rhodes v. Metropolis (111.), 36 Am. St. Rep., 468; 21 Am. St. Rep., 71; 19 Am. St. Rep., 470. Rhodes v. Metropolis was decided in November, 1891, and is very similar to the case at bar.

From the circuit court of Lincoln county. Hon. J. B. Chrisman, Judge. This was an action brought by the appellee against the appellants for the value of a horse. It was tried in the circuit court on appeal from the decision of a justice of the peace, the trial resulting in a judgment in favor of the plaintiff.

From the chancery court of Monroe county. Hon. W. H. Clifton, Special Chancellor, by agreement.

<p>Fraudulent Conveyances. Merchants’ deed of trust. Stock of goods. Retention of possession. Continuance of business.</p> <p>The deed of trust of an insolvent merchant, conveying his stock of goods and store accounts, is void as to creditors, when he is permitted to continue the business, using and selling the goods, and reinvesting’ the proceeds, under a parol agreement cotemporaneous with the execution of the deed. Roman v. RosMns, 56 Miss., 142; Joseph v. Levy, 58 Id., 845; Britton & Mason v. Greswell, 63 Id., 394; Tallman & Co. v. Tuttle Bros., 65 Id., 495, cited.</p>

From the circuit court of the first district of Carroll county. Hon. C. H. Campbell, Judge. Attachment by the appellee against one E. C. Doty, on the ground, among others, that he was about to remove himself or his property out of this state. The defendant did not contest the grounds of attachment, and the cause was tried on the issues presented by the intervention of the appellants, creditors of the defendant, who did contest them.

From the chancery court of Leflore county. Hon. Claude Pintard, Chancellor.

From the circuit court of Perry county. Hon. A. G. Mayers, Judge. Replevin by defendant in the execution described in the opinion as one issued by the clerk of the circuit court of Lauderdale county to the sheriff of Perry county, on a duly enrolled judgment of a j ustice of the peace of Lauderdale county.

From the circuit court of Franklin county. Hon. Wm. P. Cassedy, Judge.

From the chancery court of Jackson county. Hon. W. T. Houston, Chancellor. The firm of Roberts & March, merchants at Scranton, made an assignment for their creditors, with preferences, to S. R. Thompson, assignee, on December 18, 1894.

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

From the chancery court of the first district of Hinds county. Hon. H. C. Conn, Chancellor. Suit by Yazoo & Mississippi Valley Eailroad Co. against Wirt Adams, as State Eevenue Agent, and the State Eailroad Commission to enjoin defendants from further proceeding in the assessment of its property mentioned in the opinion. From a decree dissolving the injunction complainant appeals. The railroad commission has no jurisdiction to assess railroad taxes back of the year 1892.

<p>1. Statute of Frauds. Vendor cmcl vendee. Recovery of purchase money. Form of action. Code 1893, $ 671.</p> <p>When the vendee of land has taken possession under a conveyance reciting a consideration of a certain amount paid in cash and a balance to be paid in installments at specified dates, to secure which a lien is reserved in the deed, the statute of frauds does not prevent a recovery of the unpaid purchase money, although the vendee may have signed no written promise to pay; and the vendor, under the liberal provisions of $ 671, code 1893, for the simplification of pleadings, can maintain therefor his action on the case. Leev. Newman, 55 Miss., 365, criticised; Stdrstonv. Jaudon, 43 lb., 380, overruled.</p> <p>3. Limitations of Actions. Contract in writing. Ttwee yea/rs stapute, code 1893, $ 3739. Six yea/rs StaPute, code 1893, $ 3737.</p> <p>Whether the vendor in such transaction elects to proceed on the promise contained in the deed or that implied by law from the vendee’s acceptance of the deed, his right of action rests upon a contract provable, not by parol but by a writing, and the statute of limitations applicable to the case is not that of three years, provided by $3739, code 1893, in respect to unwritten contracts, but that of six years, provided by $ 3737, code 1893, in respect to all actions for which no other time is fixed.</p> <p>3. Remedy oe Vendor. Concurrent jurisdiction of equity. Statutes of limitation, code 1892, §2762. Tenyea/rs statute, code 1892, §2763.</p> <p>As the vendor.can maintain his action at law for the purchase money, it cannot be said, on his proceeding in equity to enforce his lien therefor, that his cause of action rests upon the “existence of a trust not cognizable by the courts of the common law, ” and it is not controlled by § 2763, code 1892, which limits to ten years the period within which proceedings of that character may be brought, but by § 2762, code 1892, which declares that “whenever there may be a concurrent jurisdiction in the courts of the common law and in the courts of equity of any cause of action, the provisions of this chapter limiting a time for the commencement of a suit for such cause of action in a court of common law, shall apply to all suits to be brought for the same cause of action in a court of equity. ”</p> <p>4. Pleading. Demurrer an entire thing. Demurrer to part of bill.</p> <p>In equity, as well as at law, a demurrer is an entire thing; and where so much of one as invokes the statute of limitations of six years is directed to only a part of the bill, the whole demurrer must be overruled, no other sufficient ground being alleged.</p>

From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. The opinion states the substance of the evidence. The following instructions, some of which are not numbered, were given for plaintiff: “If the jury find for the plaintiff, the form of their verdict will be, we, the jury, find for plaintiff, and assess their damages at-- dollars. ’ ’ “3.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. There was a former appeal in this cause, the same being from the decree of court below sustaining a demurrer of the defendants based on the statute of limitations. That decree was reversed and the cause remanded. Martin v. Gilleylen, 70 Miss., 324.

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. The firm of R. C. Taylor & Co. sued out a writ of attachment, in the circuit court of Copiah county, against the Denver Produce & Commission Co., a corporation under the laws of Colorado, and the Bank of Crystal Springs was summoned as garnishee. The bank answered, admitting an indebtedness to the defendant of $333.85.

From the circuit court of Washington county. Hon. R. W. Williamson, Judge. W. T. Davis recovered a judgment against Merrit Williams. Execution was issued on the judgment and levied on certain mules, and Irene S. Williams, the wife of the debtor, filed a claim thereto. The claimant’s issue was tried before the court, a jury having been waived, on an agreed statement of facts.

From the circuit court of Bolivar county. Hon. R. W. Williamson, Judge. This was an action of unlawful detainer, brought by the appellant, and tried and determined in- his favor by W.. G. Brown, a justice of the peace of Bolivar county, and Claude Seales, mayor of the town of Duncan, in said county, and ex officio a justice of the peace. The complaint was filed before Brown, and the warrant was returnable at Duncan.

From the circuit court of Bolivar county. Hon. R. W. Williamson, Judge. Replevin by the appellee, Rouse, for a boiler, engine and other machinery sold to one Kuhn, with a retention of title until payment of the purchase money. The opinion states the facts of the case. Judgment for plaintiff in replevin, and appeal by defendant.

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The appellee tore up the crossing over its track referred to in the opinion, in the spring of 1895, and built fences across the road leading to it, so as to prevent all passing. The appellant brought suit, one count of his declaration being for the $250 penalty prescribed by § 3561, code 1892, and the other for the real injury. The opinion states the substance of the evidence.

From the chancery court of Sunflower county. Hon. A. H. Longino, Chancellor. The appellees filed their bill for the cancellation of certain conveyances, under which the appellant claimed, as clouds upon their title, and the controversy turned upon the validity or invalidity of a sale to the state for taxes in 1868, under which the ancestor of the appellees had purchased the land from the state in July, 1871.

From the circuit court of Warren county. Hon. John D. G-illand, Judge. The Standard Life & Accident Insurance Co., of Detroit, Mich., issued a policy of life and accident insurance to J. D. Tinney, for three thousand dollars, on December 18, 1893, whereby it insured said Tinney, amongst other things, against death resulting from bodily injuries caused by external violent and accidental means.

From the circuit court of Noxubee county. Hon. S. H. Terral, Judge. The appellant was convicted of the murder of his wife. The defense relied on in the court below was his insanity at the time of the homicide, and, to support the same, evidence was introduced tending to show partial and intermittent insanity. The state introduced much testimony in rebuttal. The seventh instruction for defendant, as asked, was in the following words: “7.

From the chancery court of Noxubee county. Hon. G. Q. Hall, Special Chancellor. In 1867 Eobert Gillespie was declared a lunatic by an inquisition of lunacy instituted by the probate court of Noxubee county, and a guardian of his estate was appointed. In 1872 Joseph Bardwell was appointed his guardian by the chancery court of Noxubee county, and gave proper bond. Afterwards, in 1878, he was required to give a new bond.

From the chancery court of Webster county. Hon. Baxter McFarland, Chancellor. The case is sufficiently stated in the opinion. The appellees having entirely failed to aver or show title in themselves, could not call in question that of the appellants.

From the circuit court of Bolivar county. Hon. R. W. Williamson, Judge. The opinion states the case. 1.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor. The opinion states the case. The appeal was dismissed by the court of its own motion, the question of its validity not being discussed in the briefs of counsel.

From the chancery court of Coahoma county. Hon. A. H. Longino, Chancellor. This is an appeal from the verdict of a jury assessing damages, on a proceeding inaugurated by the appellees for the condemnation of the right of way through their own plantation, under the charter of the New Orleans, Baton Rouge, Vicksburg & Memphis Short Line Railroad Co. Acts 1882, § 2, p. 920. The case was previously in the supreme court, on the appeal of the present appellees. 71 Miss., 503.

<p>From the circuit court of the first district of Hinds county.</p> <p>Hon. Robert Powell, Judge.</p> <p>The appellant was indicted at the January, 1896, term of the court below for murder. At the time he was indicted and arrested upon a bench warrant, Judge J. B. Chrisman was the presiding judge of the court. He was arraigned, tried, convicted, and sentenced by Judge Robert Powell, the successor in office of Judge Chrisman. The defendant moved in arrest of judgment that Judge Powell had no jurisdiction to try and condemn him. When the motion came on to be heard he offered to prove, in support of his motion, that Judge Chrisman’s term of office expired by limitation on January 21, 1896, and that he then gave up his office, and that Judge Powell’s term of office began on January 23 of that year, on which day he entered upon the discharge of its duties, presiding as judge in the court below. This evidence was excluded as irrelevant and the motion in arrest of judgment overruled, defendant excepting and after wards prosecuting this appeal.</p> <p>When Judge Chrisman’s term expired, on January 21, 1896, and he gave up his office, there was no judge of the court below until January 23, and the term necessarily came to an end by reason of the interregnum thus created. The court was neither actually nor constructively in session during the interval preceding Judge Powell’s appointment. The January term had closed by reason of the absence of a judge competent to preside. The next regular term occurred in July, and no steps were taken to provide for a special term, under § 912, code 1892. A term of court is synonymous with a session of court. 25 Am. & Eng. Ene. L., 949. It may be terminated by a variety of causes. The judge may adjourn the court before the expiration of the period limited by -law, or he may die, and the term would be at end in the absence of any statutory saving. There can be no court without a judge. Blaekstone’s Com., bk. 3, par. 24, 25; 2 Bacon’s Abr., p. 616; 1 Bouvier’s Law Diet., p.-374. The question is not affected by § 914, code 1892, in relation to discontinuances. That statute is merely declaratory of the common law, and is intended to prevent a discontinuance when there has been nothing to finally adjourn the court. Vandyke v. State, 22 Ala., 60. The evidence offered in support of the motion in arrest of judgment should have been admitted, and the judgment sustained. The whole trial before Judge Powell was coram nonjudice and void.</p> <p>The action of the court below needs no argument to support it. The question is settled adversely to appellant’s contention by § 914, code 1892, expressly designed to prevent discontinuances in states of case like that shown by the present record.</p>

From the circuit court of the first district of Hinds county. Hon. J. B. Chrisman, Judge. The opinion states the case. The amended affidavit charged another separate and distinct offense, for which the accused could not be tried on his appeal. Miller v. State, 53 Miss., 405, 406; Blumenberg v. State, 55 lb., 529.

From the chancery court of Noxubee county. Hon. T. B. Graham, Chancellor.

From the circuit court of Pontotoc county. Hon. Newnan Cayce, Judge. In June, 1892, E. B. Nixon filed his declaration in assumpsit against Dillard & Johnson, to which defendants pleaded non assumpsit.

From the circuit court of Tate county. Hon. Eugene Johnson, Judge. The opinion sufficiently states the case. 1. The prosecuting witness was improperly allowed to state what happened after the assault, and Kit Harris, a witness for defendant, should have been allowed to state what happened when the parties were scuffling with the stick, and just as it dropped, which was clearly a part of the res gestee. 2. The verdict was contrary to the evidence, and is manifestly wrong.

From the circuit court of Rankin county. Hon. A. G. Mayers, Judge. Appellee purchased through tickets for himself and wife from Jackson, Miss., to Corsicana, Texas, from the agent of the Alabama & Vicksburg Railway Co., at Jackson, and, boarding the company ’ s train, entered the first-class coach. When the conductor came to get their fare, he discovered that they had second-class tickets and he then compelled them to go into the second-class coach.

From the circuit court of Adams county. Hon. W. P. Cassedy, Judge. The appellant was indicted for the murder of one Zion Ross, and convicted of manslaughter. The second instruction given for the state was as follows: The court instructs the jury that a reasonable doubt, in a legal sense, is a doubt which has some reason for its basis, as defined in these instructions. It does not mean a doubt from a mere caprice, or groundless conjecture.

From the circuit court of the second district of Panola county. Hon. Eugene Johnson, Judge. The appellant, Thomas Winterton, was a justice of the peace, and was engaged in hearing a case, in his office in the courthouse, at Batesville, Miss.

Feom the circuit court of Lawrence county. Hon. W. P. Cassedy, Judge. The appellant, J. H. Prine, was indicted and convicted of assault and battery with intent to kill and murder one G. I. Chaine. The difficulty occurred at a country schoolhouse, on Sunday afternoon, the school exercises appropriate to the day having just been concluded. There were a number of witnesses to the shooting, but their testimony is conflicting as to who was the aggressor.

From the chancery court of Hancock county. Hon. W. T. Houston, Chancellor. This was a proceeding in the chancery court of Hancock county by J. L. Henderson against A. F. Cameron and others, to remove a cloud upon his title to section 25, township 8, range 16 west, in said county. The answer of the defendants denied complainant’s title, and set up title in themselves.

From tbe chancery court of Yalobusha county. Hon. B. T. Kimbrough, Chancellor. The facts are stated in the opinion of the court. The bill, before amendment, would necessarily have been dismissed. Complainant must be the real owner, and satisfy the chancellor that the adverse claim is shadowy, etc. Watson v. Tusten, 49 Miss., 575; Griffins. Harrison, 52 Miss., 826; Handy v. Noonan, 51 Miss., 170.

From the chancery court of Claiborne county. Hon. Claude Pintard, Chancellor. On the tenth day of March, 1890, M. B. Herman, who had been merchandising at Hermanville, sold his stock of merchandise, notes and accounts, and a large quantity of real estate, to Ben Adler. At the time of this sale Herman owed Leon Meyer about $1,000. Meyer brought suit against Herman on this debt.

From the circuit court of Jackson county. Hon. S. H. Terral, Judge. The facts are sufficiently stated in the opinion. The question presented is whether a defendant in an attachment suit can recover damages on the attachment bond when there has been none of his property levied on. This case is different from the case of Buchly v. YanBiv&r, 70 Miss., 622.

From the circuit court of Copiah county. Hon. J. B. Chrisman, Judge. Frank Godwin was convicted of assault and battery with intent to kill one Oscar Carter. The material facts, as shown by the evidence, are as follows: Godwin and Carter had a quarrel on Friday night in Crystal Springs, in which mutual insults were given. On Saturday evening following, Carter, who lived about two miles from town, came back and made some threats that he would do Godwin up.