Volume 74 — Mississippi Reports

From the chancery court of Noxubee county. N. Scales, who was doing a mercantile business at Macon, Miss., made a general assignment for his creditors, to C. M. Scales, assignee. The assignee took immediate possession of the property assigned and filed the deed of assignment for record in the chancery clerk’s office, and began the preparation of his-petition and bond as required by chapter 8 of the code of 1892.

From the chancery court of Hancock county. ■ Peter Fink filed his bill in the chancery court of Hancock county seeking, a confirmation of a tax title to the land described in his bill. Clara Marks and all persons having an interest in the lands were made parties defendant. No personal service was obtained on any of the defendants, but publication was made for them according to law.

Erom the chancery court of the first district of Coahoma county. Nicholas Y. Boddie brought this proceeding in the chancery court of Coahoma county, seeking the cancellation of certain conveyances under which the defendants claimed title, as clouds on his title, and for leave to redeem the land from certain tax sales upon which defendants’ claim of title was founded. There was also a prayer for general relief.

From the circuit court of the first district of Chickasaw county.

<p>From the chancery court of Quitman county.</p> <p>The opinion states the case.</p>

From the circuit court of Jefferson county. The opinion states the case. The visits of the appellant to this state were not furtive or brief, but open, notorious and long-continued. Pindell v. Harris, 57 Miss., 739. The appellees also rely on Pvudell v. Harris, 57 Miss., 739, in which the court clearly sets out the scope and meaning of the statute.

From the chancery court of Adams county. B. C. Smitha died intestate in January, 1895. At the time of his death he was carrying a life policy in the Mutual Life Insurance Company of New York for $5,000, payable to himself, ‘ ‘ his executors, administrators or assigns. ’ ’ By its terms a premium of $179.50 per year was to be paid for fifteen years. J. B. Hamlett loaned Smitha, in his lifetime, $179.50 and took as security an assignment of said policy, in writing.

From the circuit court of the second district of Panola county. Unlawful detainer by appellant against appellees, tenants in possession of one Lee Caldwell. Held: could maintain this form of action. In the case at bar there is clearly privity between the parties, and it has been expressly held, on that ground, under a statute no broader than ours, that the purchaser at execution sale is entitled to the remedy. Liss v. Wilcoxen, 2 Col., 85.

From the chancery court of Claiborne county. The opinion states the case. Where one enters into an executory agreement for the purchase of land, and afterwards, before the title is conveyed to him, uses the money of another to make payment, a trust results in favor of such other. Murry v. Sell, 23 W. Va., 475; Mosteller v. Mosteller, 40 Kan., 658; Brown v. Gave, 23 S. C., 251, 257; Gilchrist v. Brown, 165 Pa., 275; Rogers v. Mw'ry, 3 Paige Ch., 389, 397.

From the chancery court of the second district of Perry county. The opinion states the case. 1. The description in the tax deed and in the assessment roll is wholly free from any ambiguity. The field notes of the United States survey, as appears from the records thereof in the land commissioner’s office, show that Bowie river is a monument in said survey. It is noted on the survey as traversing section 32, township 5, range 1 west, in Perry county, from north to south.

<p>From the circuit court of Jefferson county.</p> <p>This suit was instituted by the Mississippi Railroad Commission against the Western Union Telegraph Company for the penalty provided by § 4329, code 1892, for a failure to comply with §4328 of said code. The code sections read thus:</p> <p>“4328. Telegraph and express companies to maintain necessary offices, etc. —Every telegraph and express company shall establish and maintain offices for the transaction of business with the public, in their respective capacities as common carriers, at each city, town and village convenient to its routes, if, in the opinion of the railroad commission, the public convenience and necessities require it; and they shall not discontinue an office, once established, without the consent of the commission, which has authority to require such companies to establish and maintain offices, and to require telegraph companies to keep night operators at every place where, in its judgment, the business and public convenience justify and require it.</p> <p>“4329. PencClty on carriers for violating the law. — If- any railroad or other common carrier shall violate any of the provisions of this chapter, or shall fail to do and perform any duty imposed by law, or shall fail to comply with any lawful order of the commission, or to conform to any of its reasonable rules and regulations, or shall demand or receive a greater sum for the transportation and handling of any passenger or freight than authorized by law or the commission, it shall be liable to a penalty of five hundred dollars for every such failure or overcharge not otherwise punished, to be recovered by action in the name of the commission in any county where such failure may occur or overcharge be made; but in trials of cases brought for a violation of any tariff or charges as fixed by the commission, it may be shown in defense that such tariff, so fixed, was unreasonable and unjust to the carrier.”</p> <p>The constitution of the state provides: “Section 195. Express, telegraph, telephone, and sleeping car companies are declared common carriers in their respective lines of business, and subject to liability as such.”</p> <p>Acting under these provisions of law, the plaintiff began its suit, and charged in its declaration that the telegraph company, having previously established an office at Fayette, in Jefferson county, applied to the commission for permission to abandon the office, which request the commission refused, because, in its opinion, public convenience and necessity required the maintenance of the office; that after this refusal of consent, the telegraph company, without authority, abandoned the office.</p> <p>The defendant’s second plea set up that it was a New York corporation, that it was not doing business in Mississippi by reason of any grant, right, privilege, franchise, or immunity obtained from this state; that it obtained its right to erect its lines along the post roads of the state under an act of congress, and that the office at Fayette was on such a road, and was established before the creation of the railroad commission, and before the enactment of the law under which the suit was brought, and that the company was. engaged in interstate commerce. To this plea a demurrer was interposed, and it was sustained.</p> <p>The defendant’s third and fourth pleas set up the matters averred in the second plea, and, in addition, that the receipts and business at the Fayette office were insufficient to pay the expense of keeping it open for business, and that if maintained it would necessarily be at a loss to the company. The court below sustained demurrers to these pleas. A trial was had on the first plea, which was a general traverse of the declaration, and a judgment obtained for the plaintiff. The defendant appealed.</p> <p>If the conclusions of the railroad commission under the statute, § 4328, code 1892, are subject to judicial inquiry, the pleas held bad upon demurrer in the court below set up facts which amply justified the appellant in closing its office at Fayette. But if the statute be construed as leaving the question absolutely subject to the will of the commission, then it is unconstitutional and utterly void.</p> <p>The statute, so far as a very exhaustive research by us has disclosed, is unique- — is sui generis; it stands alone, without precedent. It is not even in harmony with other sections of the chapter relating to the supervision of common carriers, of which it forms a part. The section should not be construed as having a retroactive operation; it should not be applied to offices which were in existence at the time of its enactment. To construe the section as so applying, and as leaving the whole matter in the discretion of the commission, renders it utterly indefensible, either by precedent or on principle, and makes it violative of the fundamental principles and most cherished provisions of both the state and federal constitutions. It arbitrarily appropriates the property of existing telegraph companies to public use without any pretense at compensation; it deprives the companies of property without due process of law; and it denies the companies the equal protection of the law. It is in derogation of common right, in that it .deprives the companies of the right and freedom accorded to every other person — that of pursuing or abandoning a lawful occupation at will.</p> <p>So construed and applied, when fully analyzed and reduced to its real value, it must be treated as if written thus: “A telegraph company shall not discontinue an office once established. ’ ’ The words, £ £ without the consent of the commission, ’ ’ adds nothing, and should be treated as superfluous, because there is no provision by which the consent of the commission can be obtained. A telegraph company is as defenseless as if the words were omitted. The difference is immaterial between saying, “ You shall not dispose of your property,” on the one hand, and averring on the other, “You shall not dispose of your property without the consent of A, ” when no provision is made by which that consent can be obtained. In either case, one of the most valuable and essential attributes of ownership is taken from you absolutely; namely, the right of disposition. It is perfectly obvious that the value to the owner under such restrictions would not only be greatly diminished, but, in many instances, wholly destroyed, and, in some instances, no doubt, the very ownership would become an intolerable burden. The elementary text-books, treating of the right of the state to impose burdens upon' the owners of property, tell us that all ownership is subject to certain qualifications, and that the state has the right to take private property for public use in certain instances: (1) By taxation, (2) by the exercise of the right of eminent domain, (3) public necessity (solus populi suprema lex — -a branch of police power), and (4) in the exercise of what is called the police power.</p> <p>Manifestly, the provision under discussion cannot find its defense in the taxing power. It cannot be defended as the exercise of the right of eminent domain, because no pretense of compensation or hearing is provided for or contemplated. It cannot fall under the head of public necessity.- That right is based upon the maxim, saluspopuli suprema lex, and justifies the destruction or appropriation of private property to public use in cases of emergency — as, for instance, in time of war, or when property is destroyed to prevent the spread of fire or pestilence. The statute cannot be defended upon this ground; and, if defensible at all, it must be as an exercise of the other branch of police power, and we cannot find any recognized principle which gives support to the statute thereunder.</p> <p>The basic principle upon which all legislation on the subject of regulating business concerns rests (and the judicial decisions trace it to this source), is to be found in the following extract from the treatise Be Portibus Maris, by Lord Hale: “A man, for his own private advantage, may, in a port or town, set up a wharf or crane, and may take what rates he and his customers can agree upon for craneage, wharfage, etc., for he doth no more than is lawful for any man — namely, make the most of his own. If the king or subject have a public wharf unto which all persons to that port must go to lade and unlade their goods, as for the purpose, because they are the only wharfs licensed by the king, or because there is no other wharf in that port, as it may fall out where the port is newly erected; in that case there cannot be taken arbitrary and excessive duties for craneage, wharfage, etc. Neither can they be enhanced to an immoderate rate; but the duties must be reasonable and moderate, though settled by the king’s license or charges, for now the wharf, crane or other conveniences are affected with a public interest a.nd they cease to be juris prwati only. ” This clause is also quoted in the opinion of the court in Munn v. Illinois, reported in 94 U. S., 113, and is cited with approval as announcing the principle on which the decisions are based.</p> <p>Now, we see, in analyzing this statement of Lord Hale, that the fact that the business is affected with a public interest has the effect of limiting the extent to which the owner can charge, and prevents the exaction of excessive duties or immoderate rates. It is nowhere intimated in this celebrated passage that because the crane or wharf is affected with the public interest, the state would have a right to confiscate the wharf or crane, or that, because it was affected with the public interest, the state would have the right to forbid the owner to cease operating it at any time he might see fit, or to compel him to establish other cranes or wharves. The extent of the power is to regulate the use, and not to compel a continuance of the use, or give the right to the state to appropriate property to its use without compensation, simply because i1 was affected with a public interest.</p> <p>In the case of Munn v. Illinois, supra, Mr. Chief Justice Waite said: “Under these powers, the government regulates the conduct of its citizens one towards another, and the manner in which he shall use his property when such regulation becomes necessary for public good. In their exercise, it has been customary in England from time immemorial, and in this country from its first colonization, to regulate ferriers, common carriers, hackmen, bakers, millers, wharfingers, etc., and in so doing fix the maximum of the charge to be made for services rendered, accommodations furnished, and articles sold. ’ ’</p> <p>We see, therefore, that the authority upon which the court bases the right to regulate the charges and affairs of a warehouseman or a railroad company or a telegraph company, is derived from the same principle on which the right to regulate hackmen, bakers and millers is based.</p> <p>Now, what would we say of an act of the legislature that would provide that a bakery, once established, should not be discontinued; or that hacks, once established, should not cease to run; or that millers should continue to grind so long as “A” or 11B ” required, or that the business should be extended when and where, in the opinion of ‘ ‘A’ ’ and ‘‘B, ” the public interest required. We stand aghast at the effect, when we undertake to apply this provision to these homely industries. But surely there is not one law for the baker and another for the telegraph company, or a different law for the hackman and the miller. What is law for one is good law for the other. It may not be put in force in reference to bakers or millers or hackmen, but, at the same time, if it is valid law in regard to the telegraph companies, a law which will say that bakers must continue to bake and millers continue to grind and hackmen continue to drive, would be equally defensible. It would make no difference in the case of the baker, if competition had reduced his business to a ruinous basis; it would make no difference to the hackman that the revenues which he obtained for the use of his hacks would not afford him a just return for his labor and for the money invested; it would make no difference with the miller that sufficient grist did not come to his mill to pay the wages of his employees, he must grind on. The baker must continue to buy flour and bake loaves whether he can sell them or not. If he had a dozen bakeries, he could not discontinue one to reduce his expenses; and, on the same principle, if the party to whose discretion the matter was confided saw fit to so determine, he could be compelled to establish other bakeries where, in the opinion of the dictator, the public interest would be subserved.</p> <p>The right to regulate the use does not involve the right to compel the continuance of the use or the right to compel a citizen to devote his money, his time, or his labor, to public use without reward, or of depriving him of his liberty in regard thereto.</p> <p>The court must see át a glance the disastrous and blighting effects of such legislation on all public enterprises. Who would embark in a business if the state could, at any time, arbitrarily lay its hands upon it and forbid its discontinuance, and compel him, against his will, to continue it or extend it? Such an exercise of power is utterly incompatible with the principles of a free government and contrary to the spirit of our institutions. It strikes not only at the root of the right of private property, but at the right of personal liberty as well.</p> <p>We have used the homely illustrations above because they serve to throw a true and startling light on the possibilities of such legislation as that under consideration. When a corporation is the subject of legislation, we are too apt at times to allow that fact to blind us to the far-reaching consequences of the measures sought to be applied to it. It must not be forgotten, however, that the constitution, which takes under its protecting aegis the right of personal security, the right of personal liberty and the right of private property, places these three absolute rights on the same basis and extends its protection to the rich and poor alike — to corporations as to natural persons. A private corporation is a person within the meaning of the constitution. Santa Qlara Oounty v. Southern Pacific Railroad, 118 U. S., 894.</p> <p>The fact that the business is carried on by a corporation cannot affect the question. It is not the character of the person which determines the rightfulness of the exercise of the power, but it is the character of the business which determines. It is true, a charter may cut a very material figure in determining the rights of the state and of the corporation in a particular case, but the fact of incorporation does not affect the principle. A man whose money is invested in the stock of a telegraph company is entitled to the same protection as one whose money is invested in a bakery or in a hack.</p> <p>The fact that the companies are not dispossessed of their plants does not make the act constitutional, nor give it support. Nor does the fact that they may earn a profit cut any figure. Their earning a profit from the business is accidental and contingent on conditions which they cannot control, and does not necessarily follow. We have shown that conditions may arise, and are likely to arise, which would render the continuance of the business ruinous to the company, under the operation of the statute. The fatal defect in the law, as construed by the court below, is that it makes no provision for this. From one point of view, it might have been infinitely better for the companies if the state had actually dispossessed them and assumed the burdens as well as the benefits. As the law now operates, the state is the certain gainer, while the companies are saddled with all the risks, all the burdens, all the expenses, and all the loss.</p> <p>‘ £As property is the right to the entire or partial use or occupation or enjoyment of some specific thing, it may be taken by abrogating the right, or so dealing with the thing that the right cannot be beneficially executed or enjoyed.” 1 Hare on Constitution, 383.</p> <p>£ £ It is, notwithstanding, clear, as I have already stated, that the prohibition is not confined to the actual taking, but it includes every enactment which deprives the owner of rights in which property consists, or precludes him from putting his land or his goods to their appropriate use. He cannot, save in the due exercise of the police power, where the case imperatively requires it, be forbidden to sell or directed how to hold or enjoy; nor can the use or the sale be placed under restrictions which amount to the prohibition or render the property valueless or useless. If the legislature can thus restrict the future acquisitions of a citizen, it has no such power over existing rights. ” 2 Hare, 755-759.</p> <p>‘ ‘ Where a law annihilates the value of property, or strips it of its attributes by which alone it can be distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the constitutional provision intended expressly to shield personal rights from the exercise of arbitrary power.” Wynchamer v. The People, 13 N. Y., 378-398.</p> <p>‘ ‘ Depriving the owner of property of one of its attributes, is depriving him of his property within the constitutional provision. ” People v. Otis, 90 N. Y., 48; In Re Jacobs, 98 N. Y., 106.</p> <p>‘ ‘ The third absolute right in every Englishman, is that of liberty, which consists in the free use and enjoyment of all his acquisitions, without any control or diminution save only.by the law of the land.” Blackstone’s Commentaries, 138, 139.</p> <p>‘ ‘ Depriving a company of the power to charge reasonable rates for the use of its property, and such deprivation taking place in the absence of an investigation by judicial machinery, deprives it of the lawful use of its property, and thus, in substance and effect, of the property itself.” Blachford, J., in Railroad Go. v. Minnesota, 134 U. S., 462.</p> <p>‘ One may be deprived of his liberty and his constitutional right thereto violated, without actual restraint of his person. Liberty, in its broad sense, as understood in this country, means the right, not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will and to earn his livelihood in any lawful calling and in the pursuance of any lawful trade or avocation.” In re Jacobs, 98 N. Y., 106.</p> <p>Who will have the temerity to say that these constitutional provisions are not violated by an enactment which arbitrarily and absolutely prohibits one from abandoning a business if he sees fit to do so, or from reducing its limits when the exigencies of the business may require, or which arbitrarily compels him to extend it. The authorities above cited apply with peculiar force under a constitution like that of Mississippi, which contains this provision:</p> <p>‘ ‘ Sec. 17. Private property shall not be taken or damaged for public use, except on due compensation first being made to the owner or owners thereof in a manner to be prescribed by law. ’ ’</p> <p>The two sections of our law, §§ 4328 and 4329, code 1892, under which the forfeiture was incurred, were enacted by the legislature in order, doubtless, to carry out the mandate of our state constitution, which provides ‘ ‘ that the legislature shall pass laws to prevent abuses, unjust discrimination, and extortion in all charges of . telegraph companies, and shall enact laws for the supervision of . telegraph companies ... by commission or otherwise, and shall provide adequate penalties to the extent, if necessary for that purpose, of forfeiture of their franchises. ” And the constitution further provides (§ 195), that telegraph companies are common carriers in their business, and subject to liability as such.</p> <p>Now, the only question in this case is this: "Was the judgment, order, and determination of the railroad commissioners, in ordering the Fayette office kept open, right and proper? That it was not right and proper was the only defense that could have been made in the court below. By § 4284, code 1892, it is provided “that whenever any matter is determined by the commission in the course of any proceeding before it, the fact of such determination, duly certified, shall be received in all the courts and by every officer in civil cases as prima facie evidence that such determination was right and proper. ’ ’</p> <p>In this case, under the declaration and the general issue, all necessary and proper matters could have been tried and determined by a jury of the country, with an appeal to the supreme court by either party, if desired. The special pleas were wholly unnecessary, and the court below cannot be said to have committed reversible error in sustaining demurrers to them, and this without reference to the facts sought to be set up by them. Appellant must show error in some other part of the case before becoming entitled to a reversal. I have yet to learn that it is necessary to specially plead the unconstitutionality of a particular act, matter or thing in order to get the benefit of it.</p> <p>It must be borne in mind that the telegraph company, the appellant, brought the matter of discontinuing the Fayette office before the commission by its petition asking consent for the office to be closed. The commission heard the matter, and adjudged that the office should be continued. Now, I contend that the telegraph company, having submitted to the commission the settlement of this question, having sought and elected this forum, it is bound by its decision. The law is: “An election is binding upon the party making it, and he cannot after-wards pursue an inconsistent remedy, though full recovery may ' not be-had in the first action.” 6 Am. & Eng. Ene. L., 250; Bcviley v. Hervey, 135 Mass., 172; Herman on Estoppel and Res Adjudicata, vol. 2, 1178; Thompson v. Howan'd, 31 Mich., 309-312.</p> <p>The pleas do not show that the keeping open of the office in Fayette in any- way interferes, or would interfere, with the transmission of messages from one state to another. The attention of the court is called, in this connection, to the case of Louisville, etc., R. R. Go. v. State, 66 Miss., 671-675.</p> <p>It is manifest, from the pleas, that the statute is resisted because it imposes a burden, not on commerce, but on the company. The law is clearly constitutional.</p>

From the circuit court of Lee county. Ada Tucker sued Albert Tucker, her husband’s father, charging in her declaration that the latter had maliciously enticed, persuaded, and induced her husband,… Held: in ordinary transactions, to be accountable for the ordinary and necessary consequences of his acts. If a man loves his wife, no imputation against her by anyone, save of broken vows or moral turpitude, would induce him to leave her or would cause him to cease to love her.

From the chancery court of Harrison county. J. W. Horne and Charles Humphries filed their bill of complaint against W. L. Nugent and others, averring that the complainants were each the owner of an undivided one-third interest in a large body of land, described, and that defendants owned the remaining one-third interest, but showing further that defendants claimed the whole and denied complainant’s rights.

From the chancery court of Sunflower county. The facts are stated in the opinion of the court. We contend, in the first place, that, in case of actual and indisputable delinquency, such as is shown in this cause, the lan guage of the statute is clear and explicit; that for taxes collected by the officer he is entitled to his ten per centum commission, even though he performs no other service than the reception of the money and the receipting therefor.

<p>Replevin. Reservation of title. Failure of consideration. Admissibility of evidence.</p> <p>In replevin by the vendor in a contract containing a reservation of title until payment of the purchase money, the vendee or his assignee may defend by proving a failure of consideration, in that the subject of purchase, by reason of latent defects, did not come up to the representations made by the plaintiff at the time of sale, such proof being in legal contemplation the equivalent of payment. Bloodworth v. Stevens, 51 Miss., 475; Bates v. Snider, 59 Miss., 497; Gabbert v. Wallace, 66 Miss., 618; Dreyfus v. Cage, 62 Miss., 733, cited.</p>

From the circuit court of Sharkey county. The plaintiff, Williams, was the assessor of Sharkey county, and made the assessments thereof in the years 1894 and 1895. He demanded for his official services, as additional compensation, under the act of February 7, 1894, ten cents for each in'dividual assessed on the personal roll. The board of supervisors, claiming a discretion in the premises, only allowed one-half of the demand in 1894, and disallowed the whole of it in 1895.

From the circuit court of Issaquena county. The appellant, Duncan, was the owner of a plantation in Issaquena county. It was bounded on the west by the Mississippi river, and many years previous a levee had been constructed along, but some distance back from, the river which protected the land from overflow. The bank of the river was caving and the stream was approaching so near to this old levee as to endanger it.

From the circuit court first district of Hinds county. On motion. The appellees moved the court to strike from the record the stenographer’s notes, because the same were not authenticated by the judge of the court below, and because, as was claimed, there was no bill of exceptions. The facts involved in the motion, together with the state of the record, are shown by the 'opinion of the court.

<p>Criminal Law. Instruction Reasonable doubt.</p> <p>A reasonable doubt of guilt may arise from the want of evidence as to some fact having a natural connection with the case.</p>

From the circuit court of Yazoo county. T. C. Smith sued J. F. Powell in the circuit court, averring in the declaration that he, the plaintiff, was employed for the year 1892 as overseer and manager… Held: in Eason v. Johnson, 69 Miss., 371, that the doctrine of caveat emptor prevails. In the landlord’s lien, nothing is said about the lease being recorded, or as to how it shall be evidenced.

From the circuit court of Hinds county, first district. This was an action of ejectment for land in the city of Jackson. The case was tried by the court, a jury being waived, and was submitted upon an agreed state of facts.

Prom the circuit court of Madison county. The facts of the case are stated in the opinion. The repugnancy of the general law for working public roads, under code 1892, to the special law for Madison county (Laws 1884, p. 318) is conspicuous. The two laws are irreconcilable. The special law was not saved from repeal by § 8 of the code.

<p>i. tax Titles. Invalid sale. Insufficient description.</p> <p>A tax collector’s sale of land, not otherwise described than as “37 acres in the N. % of Sec. 1, T. 13, R. 4,” is void for uncertainty. Sims v. Warren, 67 Miss., 278, cited.</p> <p>2. Same. Sale in subdivisions. Duty of collector. Code 1892, $ 3813.</p> <p>A tax collector who sells a tract of land embracing several legal subdivisions of forty acres each, does not comply with g 3813, code 1892, by offering first one of said subdivisions and then each succeeding one as an independent subject of sale, until the amount due is produced, but should add each succeeding subdivision to the parcel or aggregate of the parcels already offered.</p> <p>3. Same. Fa/ilure to designate subdivision offered. Void sale. Code 1893, $ 3813.</p> <p>A tax sale of a tract of land, containing several legal subdivisions of forty acres each, is void, when the collector, in offering the same for sale under § 3813, code 1893, fails to designate the several subdivisions by their proper descriptions. Hodge v. Wilson, 13 Smed. & M., 498.</p> <p>4. Same. Curative statute. Ineffectual as to void sale. Code 1893, § 3817.</p> <p>A tax sale that is void by reason of the failure of the collector to designate the several forty-acre legal subdivisions composing the tract sold by their proper description at the time of offering the same, is not cured by the provision in $ 3813, code 1893, that “no error in conducting the sale shall invalidate it,” nor by § 3817 of the same code, to the effect that his conveyance shall not be invalidated, “except by proof that the land was not liable for the taxes or that the taxes for which the land was sold had been paid before sale ” (Virden v. Borwers, lb., 36; Griffin v. Filis, 63 Miss., 348) nor by the constitutional provision assimilating tax sales to sales under execution. Gamble v. Witty, 55 Miss., 36.</p>

From the circuit court of Lafayette county. The facts are stated in the opinion of the court.

From the circuit court of the first district of Hinds county. This was a suit by Ligón to recover the statutory penalty of $250 for the failure of the railway company to maintain a crossing for a necessary plantation road on a farm of which he was in possession under a lease for five years.

From the circuit court of Warren county. This suit had its origin in the effort of the state revenue agent to collect from the bank taxes due to the city of Vicksburg for the years 1886, 1887, 1888, and 1889, and which he claimed the bank had wrongfully escaped.

From the chancery court of Noxubee county. Andrew Conner died in 1853, leaving a will in which the following clause occurs: “I will and devise all my real estate to my beloved wife, Rosanna, for and during her natural life, for the use and benefit of herself and such ■ of her children as shall live with her, . . . and upon the death of my said wife, said real estate shall go and descend to my lawful heirs, share and share alike..

From the circuit court, first district, of Panola county. Cephas Hammond was indicted by the grand jury of the first district of Panola county, in March, 1896, for the murder of his stepson, an infant about two years of age. The indictment was adjudged defective and a second one was found.

From the chancery court of Lauderdale county. The opinion states the case. Was the bill, in legal contemplation, filed on May 5, 1892, or, is it true, as contended, that it was not filed until the issuance of process on May 9 ?

From the circuit court of Tallahatchie county. J. M. Evans sued the Southern Railway Company before a justice of the peace of Tallahatchie county, claiming damages for the negligent killing of a mule by the cars of said company. The summons was returned “executed,” and, on its return day, December 2é, 1895, a judgment by default, without proof of value, was rendered by the justice of the peace in plaintiff’s favor for the full sum demanded in the suit.

From the chancery court of Bolivar county. The opinion states the case. 1. The right of the beneficiary of a deed of trust to foreclose in pais in nowise prej udices his right to do so in equity, and his rights to a receiver pendente lite is coextensive with that of a mortgagee, when the property is insufficient to pay the debt and the incumbrancer is insolvent. Phillips v. Biland, 52 Miss., 721;. Myers v. Estill, 48 lb., 372.

From the chancery court, first district, of Hinds county. The facts are fully stated in the opinion of the court. Upon the decision of this case depends (1) the amount of poll tax to be hereafter collected in this state for all time to come; (2) the construction of the lien clause in sec. 243 of the state constitution; (3) whether our free public school system is to suffer by a strained construction of the instrument by which it is created.

From the circuit court of Tunica county. The appellants sued the appellees in ejectment for certain land that had been taken by the latter for levee purposes, claiming, also, damages for the taking of the land sued for and such other damages as resulted from the taking to their adjacent land.

From the circuit court of Washington county. The defendant was indicted for the murder of Nancy Miner. He moved the court below for an order'removing the case to the United States court, which motion was overruled. Defendant also made a motion to quash the indictment, and this motion was denied. The facts upon which these motions were based are stated in the opinion of the court.

From the circuit court of Yalobusha county. The opinion states the case. 1. This suit and that in which the appellee’s assignor recovered damages in 1891, relate to adjoining forty-acre tracts of land, and both are for the same cause of action, viz., the closure, in 1880, of a culvert and the construction of an embankment, interrupting a natural water course, thereby causing overflows and deposits of sand. Damages resulting from the same cause cannot be apportioned or £ 2.

From the chancery court of Lauderdale county. The Queen City Manufacturing Company, an insolvent corporation, executed a general assignment, by which it preferred debts due to several of the directors who were stockholders, and it also preferred debts for which two of the directors who were stockholders were bound as indorsers. The directors who were beneficiaries of the preferences voted for and caused the assignment to be made.

From the circuit court of Marshall county. There was a reference to arbitrators, under § 112, code 1892 (ch. 6), in the suit brought by J. A. Mathews in his lifetime against Rand, Johnson & Co. About two months after the hearing of the evidence and the submission of the matter, the arbitrators had a second meeting to arrive at and announce their conclusion.

From the chancery court, first district, of Hinds county. The court below having entertained jurisdiction of this case, the question as to whether 'it were or were not equitable in character did not arise in the supreme court, by reason of the provisions of sec. 147, constitution of 1890, which provides: “ Section 147.

<p>Practice. Witness fees. Commitment. Per diem, alloivdble. Code 1892, %% 1987, 2023 to 2026 inel/ustve.</p> <p>A witness for the state in a criminal proseention who has been committed to jail to secure his appearance before the circuit court, is not, under \\ 1987 to 2026 inclusive, code 1892, entitled to a per diem allowance of fees for the whole period of his detention, but only for that covered by his attendance upon the court when in session.</p>

From the circuit court of Monroe county. The appellee issued to the appellant a policy of insurance against loss by fire ‘ on cotton in bales held for compression or compressed, but not loaded upon cars, and for which a compress shipper’s receipt has been issued, for Mobile & Ohio, Illinois Central, or Kansas City, Memphis & Birmingham railroad companies, while contained on the open platform and under sheds of the Hope Oil Mill, Compress & Manufacturing Company, Aberdeen,…

From the circuit court of Monroe county. This was a suit brought by the state revenue agent against the railroad company, before a justice of the peace, for $58.25, amount alleged to be due and unpaid on a special stock law tax of one mill, levied by the board of supervisors of Monroe county for the purpose of maintaining the fences inclosing the fifth supervisor’s district of said county, which had been declared a stock law district.

From the circuit court of Monroe county. Held: by the plainest and absolutely unavoidable implication, that where the running at large of stock is made unlawful by local or general laws, such straying constitutes contributory negligence on the part of the owner.

From the chancery court of Sunflower county. The co-partnership, of which appellant is the survivor, employed appellee’s intestate, who was an attorney at law, to collect a debt due the firm from third parties. The other facts are sufficiently stated in the opinion of the court. Complainants need not allege they used reasonable diligence, etc., because the parties sustained the relation of client and attorney.

From the circuit court, first district, of Hinds county. • Plaintiffs sued defendant before a justice of the peace, claiming that they were the owners of a house which defendant had torn down and converted the material thereof to his own use. A jury trial was had in the justice’s court, resulting in a verdict of one cent against defendant.

From the chancery court of Madison county. It appears, from the averments of the bill of complaint filed by the appellant, that, in 1870, she and her two younger sisters owned the land in controversy as tenants in common and heirs of their deceased father, who died in possession during that year; that she married the defendant, L. Snider, during that year, and her sisters fell to her care; that shortly after the death of her father, on account of some complication concerning…

From the chancery court of Madison county. Woodman & Bro. were indebted by note to appellant, Gross, in the sum of §1,459.75, and, in January, 1894, executed a deed of trust upon a number of cattle to secure the same.

<p>From the circuit court of Warren county.</p> <p>This was an action for money had and received. On the trial, the defendant introduced evidence tending to show that the plaintiff, at the time the indebtedness was contracted, was doing business in Yicksburg as a wholesale dealer in malt liquors, and had not paid the privilege tax required by law. The court below gave a peremptory charge in favor of the plaintiff, and, defendant’s motion for a new trial having been overruled, he prosecuted this appeal.</p> <p>The plaintiff seems to be debarred of all remedy by two provisions of our statute law. By § 3401, code 1892, it is provided contracts made in reference -to the business carried on in violation of the privilege shall be void so far as the person in default may base any claim thereon; and by § 849, same code, it is provided that foreign corporations shall not do or commit any act in this state contrary to the laws or policy thereof, and shall not be allowed to recover on any contract made in violation of law or public policy.</p> <p>It is the universal principle that any contract entered into with the mutual intent to evade the laws of the place where it is executed, is void, and especially is this rule applied to contracts relating to the sale of liquor. 9 Am. & Eng. Ene. L.; Armstrong v. Toler, 11 Wheat. (U. S.), 258.</p> <p>This is not a suit upon a contract which is collateral to or independent of the original illegal contract or transaction, but it is a suit to recover the proceeds of an illegal business, which went into the hands of the defendant, under a distinct agreement that he was to receive these proceeds, and now having violated that agreement, the plaintiff comes into court to make him carry out the contract, to wit: To pay the proceeds arising from the sale of the keg beer, which was sold without any license on the part of the brewing association, and was sold, moreover, under the sham and subterfuge that the defendant’s firm, the Yicksburg Liquor & Tobacco Company, were pretending to sell it as its beer, when, in point of fact, it was the beer and business of the New Orleans Brewing Association. Miller v. Ammon, 145 U. S., 421; Collins v. Blanton, 2 Wils., 341; Jaolcson v. Pashier, 3 Term R., 507.</p> <p>The beer was sold by Kain, agent of appellees, and the proceeds thereof, which make up the account sued on, were paid to appellant for appellee’s use. The interdicted transactions are completed, the sales made, and the price paid, and the appellant cannot refuse to account for the money so received, on the ground that it represents the proceeds of illegal sales of liquor. BrooJcs v. Martin; 2 Wall., 81; McBlairr. Oihbes, 17 How., 236; Tena/nt v. Elliott, 1 B. & P., 3; Farmer v. Riossell, 1 B. &S., 296; People’s Banlc v. Railroad Co., 65 Miss., 365; Crumr. Shoe Co., 72 Miss., 458; Lawson’s Rights & Remedies, secs. 2014, 2552.</p>

From the circuit court of Winston county. The original writ of attachment herein, issued in 1891, was returned by the sheriff of Winston county “No property found. Defendant not found in my county. ’ ’ A similar return was made on an alias writ issued to Attala county; and an alias writ issued to Leflore county was returned ‘ ‘ No property found, ’ ’ but the defendant, Campbell, was summoned in the last mentioned county, which is and then was his place of residence.

From the circuit court of DeSoto county. The appellant was prosecuted for stealing seed cotton of the value of $20. The affidavit alleged that it was stolen from the premises of J. D. Nichols, the affiant, but did not allege that it was the property of Nichols, or any other person than the accused. The evidence showed that the cotton was stored in a cotton house on the plantation of Nichols.

From the circuit court of Holmes county. Howard, appellee, obtained a judgment against Mrs. Shoemaker, and caused an execution thereon to be levied upon a stock of merchandise which was claimed by Albin, appellant. A trial of the right of property was had, resulting in a verdict and judgment for the plaintiff in execution. The claimant appealed.

From the circuit court of Wilkinson county. The opinion states the case. The essential element of the crime of larceny is the stealing of something valuable; and the two classes of larceny — grand and petit — are distinguished by the fact of whether or not the subject of the theft is under th’e value of twenty-five dollars. Code 1892, §§ 1173, 1174.

From the chancery court of Lauderdale county. Wildberger, the appellee, was the agent, at Clarksdale, of the Equitable Fire Insurance Company, a corporation domiciled at Meridian..

From the circuit court of Pike county.' The opinion states the case. The appellant should have been discharged on his motion to that end. The testimony showed that neither the verdict nor judgment were entered by the justice of the peace until several days after the adjournment of the term at which appellant was tried, and no memorandum whatever of the result of the trial being made on his docket. MeQuillen v. State, 8 Smed. & M., 587; Grayy.

Erom the chancery court of Noxubee county. The estate of R. C. Patty, deceased, of which appellee, Ella H. Patty, is the administratrix, was declared insolvent, and notice was given to all creditors to present their, claims for allowance. Certain of the creditors employed Messrs. Rives & Rives, lawyers, to represent their interest.

From the chancery court, first district, of Panola county. Mrs. Anna Dandridge died in 1888, leaving a will of date January, 1870.

From the circuit court of Newton county. The j udgment appealed from was rendered in a proceeding by certiorari to set aside the judgment of a justice of the peace. The opinion sufficiently states the case. The facts stated in the petition for the writ of certiorari do not disclose any errors of law. The case was properly transferred under § 2534, code 1892.

From the chancery court of Washington county. In 1892, Gr. W. Smith owned lands near the Mississippi river, in Washington county, upon which appellant held a mortgage to secure a large sum of money. On the ninth day of April, of said year, the board of Mississippi levee commissioners instituted proceedings to condemn a part of said lands, under the act of 1884 (Laws 1884, p. 166), for levee purposes, but appellant was not made a party to the proceeding.

From the chancery court of Lauderdale county. Mrs. E. N. McWhorter died in 1893 owning, subject to the deed of trust next herein mentioned, the lands in controversy. In 1892 Mrs. McWhorter and her husband executed a deed of trust on the lands to secure a debt due to Chiles & Walker.

From the chancery court of Noxubee county. Kobert C. Patty, deceased, was guardian of the appellees, and as such came into possession, among other assets, of a note for $2,200, executed by himself, payable to the ancestor of his wards, and which was secured by deed in trust on lands. Patty never accounted for any part of this note.

From the circuit court of Jefferson county. The facts are stated in the opinion of the court. The reporter does not find a brief on either side on file.

From the circuit court of Jones county. The suit was instituted by Moore, sheriff, for the use of Gage, against appellees to recover damages on an indemnifying bond. A demurrer was sustained to the declaration, and plaintiff appealed. The declaration is good in law, and the demurrer should have been overruled. See §§ 3482 and 3483 of the code of 1892.

From the chancery court of Amite county. The facts are stated in the opinion of the court. The test of the character of the transaction in giving 'the note and recording the deed for more than the true amount, admitting the $620.52 to be the true amount due Moyse, is, was it such as would have been held as fraudulent as against the cred■itor of Barwick, had such creditor attacked the same for fraud therein.

From the circuit court of Lincoln county. The facts are sufficiently stated in the opinion of the court. The seventh instruction, given at plaintiff’s request, which is referred to, in the opinion of the court, is as follows: £ The instructions given for defendant, referred to in the opinion of the court, are as follows: “ 3.

From the chancery court of Jefferson county. The facts are stated in the opinion of the court. In a suit like the one at bar, the grantee is estopped from denying the validity of the title conveyed by the deed where-under he took possession of the land. Cowell v. Springs Compcmy, 100 U. S., 55; Cromwells. Craft, 47 Miss., 44; Wade v. Thompson, 52 lb., 367; Clemens v. Meyer, 44 La. Ann., 390.

From the circuit court of Leflore county. The plaintiff, a negro boy fourteen years of age, endeavored to steal a ride on defendant’s west bound passenger train. He was discovered by the flagman, who, with great violence, knocked him from the train while it was running at a high rate of speed. He lay upon the track where he fell, insensible for some hours, and was at length run over and seriously injured by defendant’s east bound passenger train.

From the circuit court of Lafayette county. Will Strother was indicted for carrying a deadly weapon concealed. There, was testimony tending to show that he was threatened and had good and sufficient reason to apprehend a serious attack from an enemy, and that he did so apprehend, etc. Defendant requested the court below to give the following instructions, being the .ones numbered two and three, mentioned in the opinion of the court: “ 2.

From the circuit court of Leflore county. M. Levy & Sons brought replevin against McMath to recover the property in controversy. The evidence is sufficiently stated in the opinion of the court. The court below gave a peremptory instruction for plaintiff; a verdict and judgment having been rendered in accordance therewith, defendant appealed.

From the circuit court of Clay county. This suit was brought by appellee to recover damages from the railroad company for the destruction, by fire, of a large number of pecan trees.

From the chancery court of Yazoo county. Held: that the purchaser was not entitled to his improvements. The effect of this decree was to deny the sufficiency of actual good faith and honest ignorance of defects to support a claim for improvements where the title papers under which the purchaser claimed themselves disclosed the invalidity of his title.

From the circuit court of Covington county. The facts are stated in the opinion of the court. Instructions numbers one and three, referred to in the opinion of the court, were as follows: “1.

From the chancery court of Lincoln county. Hartman obtained a judgment in the circuit court against L. D. and B. O. Day, which was duly enrolled.

From the circuit court of Monroe county. Motion by appellee to dismiss the appeal. Paine sued out an attachment for rent, before a justice of the peace, claiming thirty-three dollars as due him from the tenant, Biddle. The distress warrant was levied upon two hundred bushels of corn, valued in the aggregate at more than fifty dollars, and eighty bushels of cotton seed.

From the circuit court of Lee county. . Appellant’s intestate instituted this suit seeking recovery on a promissory note for $2,789, less a credit of $1,000, against the appellees, the surviving makers of the note, and the executor of one of them who had died. The declaration itself showed that, upon payment of the $1,000 for which credit was given, by R. C. Clark, one of the makers, the note was surrendered to him by the payee. The defendants filed three pleas.

<p>From the circuit court of Clarke county.</p> <p>The facts are stated in the opinion.</p>

<p>1. Criminal Law. Mv/rder. Instruction.</p> <p>An instruction which authorizes a conviction o£ murder upon mere proof of the killing is erroneous. Kearney v. State, 68 Miss., 339, approved.</p> <p>3. Same. Confession. Coxurt and jury.</p> <p>The court determines the competency of a confession, and, when admitted, the jury cannot rightfully fail to consider it as evidence, though, if they disbelieve the witnesses who testify to the confession, they may attach no weight to the same.</p> <p>3. Same. Free and voluntary. Reasonable doubt.</p> <p>The court should not admit a confession if it entertains a reasonable doubt as to whether it was free and voluntary.</p>

From the circuit court of Clarke county. The facts are stated in the opinion. The declaration does not present the question of the right of the company to pass a rule or regulation requiring blind persons, before riding on its trains, to provide themselves with an assistant. It does not appear that any such rule or regulation was ever enacted.

From the circuit court of Montgomery county. The New Orleans National Bank sued appellant upon a judgment. The defendant in the court below filed two pleas, each averring that the judgment sued upon was rendered by default upon a promissory note executed in this state to J. H. Allen & Co., to reimburse them for money paid for defendant, and as defendant’s agents, in a gambling transaction on the rise and fall of prices, commonly called dealing in futures.

From the circuit court of Webster county. Appellant was convicted of perjury, and appealed to the supreme court.

From the circuit court of Monroe county. The facts are stated in the opinion. The action at bar, as well as those brought by Kahl and Smithpot, were intended as actions of tort, and not of contract. Appellant and the other owners of the stock on appellee’s car had the right to sue appellee in tort as a common carrier.

From the circuit court of Monroe county. Mrs. French, the appellant, sued the railroad company for the statutory penalty prescribed by § 3561, code 1892, for failing to construct and maintain stock gaps and cattle guards where its track passed through the inclosed land of the plaintiff.

From the circuit court of Quitman county. The facts are stated in the opinion. The opinion of this court in Goole v. State, 72 Miss., 517, clearly maintains our position. It is well settled that when the indictment is fatally defective this co.ui't will, even when no demurrer or motion in arrest is made, quash it. Kirie1 s case, 13 Smed. & M., 406. The indictment in this cause does not charge that the intent to kill Gibson and others was with malice aforethought.

From the circuit court of Pontotoc county. This was an action of ejectment. One Sappington purchased the land upon a credit from J. L. Johnson, defendant, and the purchase money was secured by a deed of trust on the land, given by Sappington to his vendor. Sappington afterwards sold the land to F. E. Johnson, the plaintiff, and still later the land was sold under defendant’s deed of trust; and the defendant, having purchased at the trustee’s sale, took possession.

FROM thc chancery court of Washington county. The facts are sufficiently stated in the opinion.

From the chancery court of Wayne county. The decree of the court below awarded the entire fund to the judgment creditors, the same being insufficient to satisfy their claims.

From the circuit court of Monroe county. The facts are stated in the opinion of the court. The principal has himself the right to sell without liability for commissions. 2 Am. & Eng. Ene. L., 584, and notes; MeGlane v. Paine, 49 N Y., 561 (10 Am. Rep., 431); Packing Go. v. Farmers' Union, 55 Cal., 606; Sibbald v. ddetldehem Iron Go., 83 N. Y., 378 (38 Am. Rep., 441). See Stewart v. Murray, 92 Ind., 543 (47 Am.

From the circuit court of Sunflower county. The facts are stated in the opinion of the court. The only question is, whether § 714, code 1892, is applicable.

From the circuit court of Tate county. Tom King, the appellant, was indicted for the murder of one Walter Clayton. The evidence showed, or tended to show, that defendant laid in wait for the deceased in the early part of the night of the killing, and made threats of doing great bodily harm to deceased if he had to wait on the roadside, along which deceased was expected to come, until midnight.

From the circuit court of Lee county. In 1890, S. H. Taylor and wife executed a deed of trust on lands to secure a debt, which was foreclosed in 1891, and the land was purchased by appellant. The land, however, was sold under an execution, after the making but before the foreclosure of the deed in trust, and was purchased thereunder by E. B. E. Taylor.

<p>Evidence. Erroneous admission. Reversal.</p> <p>If a plaintiff so far fails to make ont his case that a peremptory in strnction could rightfully be given against him, he cannot reverse the judgment for defendant because the trial conrt permitted defendant to introduce incompetent evidence.</p>

From the circuit court of Harrison county. Appeal by defendant below and the sureties on his replevin bond; cross appeal by plaintiff below. The facts are stated in the opinion of the court. The logs actually cut and removed from the school land in question were so inextricably mingled with the other logs of the defendant as to render identification of them impossible.

<p>From the circuit court of Lincoln county.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>1. The action is based on § 2318 of the code of 1892, which did not take effect until November 1, 1892, and the contracts by and upon which it is claimed usurious interest was stipulated and received, were made respectively, January 27 and June 18, 1892. The suit is for all interest paid, both lawful and usurious. Under the law in force at the time of the contract, only the excess over the lawful interest could be recovered. Sec. 1111, code of 1880; Dickerson v. Thomas, 67 Miss., 777. The statute is penal, and should be strictly construed. Statutes are never given a retrospective operation if any other construction can be given them. Planter’s Bank V. Snodgrass, 1 How. (Miss.), 621; Wade on Retroactive Laws, secs. 31-36; Hooker v. Hooker, 10 Smed. & M., 599; Garrett v. Beaumont, 21 Miss., 377; Carson v. Carson, 10 Miss., 319; Black on Interpretation of Laws, 259; Tyler on Usury, 371.</p> <p>2. The money sought to be recovered back was received in Louisiana, it being part of the payment mentioned in the declaration as made December 1, 1891 ($3,191.50), the payments previously made not being sufficient to extinguish the principal, and to its payment the law would first apply them. McBroom v. Scottish Mtg. da La/nd Investment Co., 153 U. S., 318. No action, therefore, accrued to the plaintiffs in this state, and the statute will not be given an extraterritorial operation. Black on Interpretation of Laws, 91.</p> <p>3. The evidence of Auze, showing what was said and done by and between the parties, notwithstanding his unqualified declaration that the contract was made in this state, establishes beyond controversy that it was made in Louisiana. What, according to his version, was said in Brookhaven between himself and Becker, the cashier of the bank, prior to the execution of the notes and mortgages, was mere negotiation, a simple application for a loan, and a proposition to secure it by a mortgage on lands in Louisiana. If nothing more had occurred, it will hardly be claimed that the appellees could have had specific performance on bill filed for that purpose, tendering to execute the security, or a recovery at law for a breach of the contract. The contract would date from the place of acceptance, and would be governed, as to its validity, by the law of that place. 3 Am. & Eng. Ene. L., 852-857; 13 Am. Dec., 281; 99 Am. Dec., 663 and note.</p> <p>The rights of parties to a promissory note is determined by the law of the place where it is delivered. 4 Dallas (U. S.), 60.</p> <p>The proposition of Auze that the bank should make him a loan, and he to secure it by a mortgage on lands in Louisiana, was accepted by Brennan, the agent of the bank, and the notes and mortgages executed and delivered in Louisiana, and the obligation of the bank to advance the money dates from this time. From that moment, for the first time, a contract existed between the parties, valid by the law of the place, and susceptible of being specifically enforced by either party. The money borrowed was for the use of Mrs. Auze, secured by mortgage on her property in Louisiana; the debt was her debt. Her power to contract it, and mortgage her lands to secure it, were granted, on her application, by the courts of that state. She had no power, under the laws of her residence, to make the contract until it was authorized by the proceedings for that purpose, and these proceedings were had, and the respective notes and mortgages were executed and delivered at the same time and place. Being a resident of Louisiana, and the lands with reference to which she contracted being situated there, she could not, by reason of her marital disability, have made such a contract in this state, and this ought to be conclusive as to the place of the contract.</p> <p>The instructions given for the plaintiff are clearly erroneous in authorizing a recovery for all interest paid. They should have limited the recovery to the excess only, as under the code of 1880, rather than authorizing a recovery under the code of 1892. The two code provisions are materially different, § 1141 of the code of 1880 providing “that if a greater rate of interest than ten per cent, shall be stipulated for in any case, all interest shall be forfeited; ” § 2318 of the code of 1892 that, “if a greater rate of interest than ten per cent, shall be stipulated for or received in any case, all interest shall be forfeited, and may be recovered back, whether the contract be executed or executory. ’ ’</p> <p>In support of the proposition declaring the right to contract with reference to the laws of another state touching the subject of usury, we cite the following authorities, relying confidently upon them to demonstrate the error of the court in refusing the instructions on that subject: Brown Bros. v. Freeland & Murdoch, 31 Miss., 181; Tiedeman on Com. Paper, sec. 511; 23 Am. St. Rep. (79 Tex., 216), 332, and Bkte, 310; 32 Am. St. Rep. (83 Iowa, 120), 291; 18 Am. St. Rep. (90 Iowa, 300), 112, and note 116; 17 Am. St. Rep. (116 N. C., 882), 811; 88 U. S., 211; 31 Am. Dec., 261; 88 Ga., 756; 15 S. E. Rep., 812; 18 N. W. Rep., 638; 58 Hun (N. Y.), 608; 8t/arclevant v. Memphis National Banh, 9 U. S. C. C. App., 256.</p> <p>Our contention on this branch of the case is, in short, that the parties, being residents of different states, had a right to contract either in Mississippi or Louisiana as to the rate of interest with reference to the laws of either state; that, in the absence of proof as to the law with reference to which the parties contracted, the presumption is that the contract was made with reference to the laws of that state where the rate of interest stipulated for was lawful rather than the one where it was unlawful; and that the notes, mortgages, court proceedings, and the facts surrounding the transaction, as disclosed by the evidence, leave no room for doubt that the parties actually did contract, as to the rate of interest, with reference to the law of Louisiana, and that, having done so, the case made is not one where the penalties of the Mississippi statute can be imposed or is at all applicable.</p> <p>The third plea was demurred to, and the demurrer sustained. The plea was to the first payments, aggregating $1,252.77, and it averred that the plaintiffs could not recover on account of them, because they were made more than one year before the beginning of the suit. The demurrer to this plea speaks for itself. The plea was to the whole declaration, and set up only a partial, if any, defense. The suit was not for the recovery of the specific payments mentioned in the plea; these payments went to pay the sum actually borrowed, and suit could not have been brought for anything until the whole money borrowed, without interest, was repaid. This is shown not to have been done until within a year before suit brought.</p> <p>‘ ‘ In accordance with the rule that payments made to the creditor will be applied to the valid part of the debt, it has been held that so long as the whole amount paid does not exceed the debt and lawful interest, the debtor cannot maintain an action to recover back.” 27 Am. & Eng. Ene. L., 961. Of course, this is said, so far as lawful interest is concerned, as to the law of a forum where only excessive interest can be recovered. The rule is equally applicable where all interest can be recovered. Josey v. Davis (Ark.), 18 S. W. Kep., 185; Hawkins v. Welch, 8 Mo., 490; Tyler on Usury, 421 et seq.</p> <p>It is also submitted that this action is not for “ a penalty or forfeiture on any penal statute ” within the meaning of § 2741, code 1892, and that the one year statute of limitations has no application. While the usury law, § 2348, code of 1892, may be in one sense penal, yet, in a broader and truer sense, it is remedial. In so far as it gives a right of action to sue, it is purely remedial. Even statutes authorizing an action to be brought to recover usury paid within a limited time are regarded as cumulative, and not as prohibiting the common law action at any time within which such action may be brought. 27 Am. & Eng. Ene. L., 962, and authorities cited.</p> <p>It must be borne in mind, in the consideration of this case, and especially of the fourth plea, that every loan and borrowing of money embraces two contracts — (1) the lender’s contract, by which he agrees to advance the money upon the terms stipulated. This contract is rarely in writing; and (2) the borrower’s contract, by which he obliges himself to repay the debt. This, the borrower’s contract, is most frequently in writing, and is evidenced by the promissory notes given to the lender. It is the first, the lender’s contract, which is condemned by statute, when a greater rate of interest is stipulated for than ten per cent. The one contract is not necessarily made at the same place with the other. The agreement to loan by a banking corporation, like appellant, is usually made at its banking house; the notes which evidence the borrower’s obligations to repay, may be executed elsewhere, and are frequently so executed.</p> <p>In the case of Martin v. Johnson, 8 Lawyers’ Reports Annotated, 170, decided March 1, 1890, the supreme court of Georgia says: ‘ ‘ The contract of lending and borrowing always includes two agreements — one by the lender to deliver the money, and the other by the borrower to repay it. As the pleas do not allege that the agreement to deliver the money was to be performed elsewhere, the place of delivery was Georgia. It was in the performance of this agreement that the usury was reserved. The whole amount of the money was deducted from the money delivered, and this was done in Georgia. The taint of usury does not result from payment, but from the agreement, performed or unperformed,” etc. Is usury, received in Mississippi by deducting it from the loan, less usury because the note for its repayment is executed elsewhere ?</p> <p>Of course, it is of no consequence that the parties did not intend to violate the law. The question is, did they intend to do the act which was a violation of the statute; did they intend to stipulate for a greater rate of interest than ten per cent. ? If so, then the law was violated. Even if both parties had mistakenly believed that the legal rate of interest in the state was twenty per cent., yet, if they stipulated for a rate exceeding ten per cent., the consequence of the statute would be upon them. Ignorantia juris non excused. A mistake of fact — as, a miscalculation or any inadvertence, may, it is true, be excused. Such are the cases noted in the annotations under § 2348, code of 1892. The averment of the fourth plea that the contract as regards interest was made with reference to the laws of Louisiana, where plaintiff resided, does not help the plea. It is true that where a contract is made in one state, to be performed in another, the law of either place may be adopted. But that is not this case. According to the declaration and the plea, the contract for interest was made in this state, and was to be performed here; even .the notes were payable at Brookhaven, Miss. If a citizen of another state comes into Mississippi and makes a contract to be performed here, it is, to all intents and purposes, a Mississippi contract. The averment of the plea that the notes were executed in Louisiana, confuses the contract for which suit is brought (the lender’s contract to advance the money), with the obligation of the borrower to repay, and, under the Georgia case, supra, does not help the plea. The demurrer was properly sustained, as is believed. But, if I be mistaken in this, appellant had the full advantage of everything averred in the plea under the notice filed with the general issue, and the evidence presented all of said matters to the jury, and' they were found by it to be untrue. The taking of mortgages on lands in Louisiana did not govern and control as to the usury law applicable to the transaction. American, etc., Go. v. Jefferson, 69 Miss., 770; 27 Am. & Eng. Ene. L., 974,' 975; Tyler on Usury.</p> <p>We have in this case, to show that the loan was made and the illegal interest was stipulated for in this state, the positive evidence of the plaintiff. It could not be made stronger; and, in addition to this, it was admitted by the officers of the bank that negotiations were begun here. It is true the notes, other than the two small ones given only for usury, were executed in Louisiana, but they were made payable here, and prima facie the interest laws of this state govern. The money was paid to plaintiffs on the loan in this state; $250 was sent from Brook-haven by express, and this was delivered here to the express company for plaintiffs, and, in legal effect, is the same as' if handed to them here; the balance was paid upon plaintiff’s checks in Brookkaven, upon presentation here to the bank. Remember, the question is, where did the bank stipulate for unlawful interest? It is the bank’s (the lender’s) contract, which must be located. So far as this court is concerned, this case must be decided (for there is abundant evidence supporting the verdict) as if the following facts were admitted: (1) The bank (appellant) loaned the money in this state, negotiated for its loan here; (2) the loaned money was paid or passed over to borrowers here; (3) the loan was to be repaid here, and this according to the borrower’s notes, too, and it was largely repaid here. This being true, it makes no difference where the borrower’s notes were executed, and none that they were secured by a mortgage on Louisiana lands.</p> <p>But it is argued that Auze’s testimony did not establish a binding contract, one that could have been specifically enforced before the execution of the notes and mortgages in Louisiana; therefore, it is contended what was done in Louisiana culminated the contract, and that it was imperfect before. To this there are at least two perfect answers:</p> <p>1. One of fact. Auze testifies that the first note was signed in blank in Louisiana — Brennan not knowing how to fill it out —and that it was brought back to the bank by Brennan, with authority from plaintiffs for the bank to fill up the blanks. If this be true, and the j ury had the right to believe it, this note was really executed in Mississippi. And it will be noticed that in reference to the second loan there was no evidence offered by the defendant disputing what the plaintiff, Auze, said about it. Defendant’s evidence all related to the first loan. The only evidence relating to the second loan was that of plaintiff that the loan was made and concluded in this state. The note given therefor, however, is dated in Louisiana.</p> <p>2. But if it be admitted that the contract of the bank could not have been specifically enforced until after the notes were made, it does not follow that the loan was made in Louisiana. Surely a contract of loan can be made in one place and the borrower’s notes executed in another. There is nothing legally or physically preventing this. Unless the court is ready to decide that in every case of loan the contract is necessarily made where the borrower’s notes are executed, there is nothing in the argument.</p> <p>Again, very few contracts respecting personal property will ever be specifically enforced by a court of equity. Such contracts must be exceptional and quite peculiar, or they will not be specifically enforced. Such a remedy is almost exclusively confined to contracts concerning land, and in all other cases the aggrieved party can only sue for damages. Hence, inability to specifically enforce a contract of loan is no test of its validity or criterion to determine where it was made. But, still further, the argument proves too much if it proves anything. No court would ever specifically enforce an usurious contract; it would not require the lender to violate the law; it would not requir’d him to loan his money at a less rate than he had contracted to do, for this would be inequitable. So we see the right to specific performance by the borrower . cannot determine the right to recover for usury; for, if that be the test, there is no case in which a recovery can be had.</p> <p>Finally, on this head, to specifically enforce a contract the defendant must be placed in default. Take the ordinary case of a bond for title to land; before the vendor can be required to make deed, the vendee must pay or tender the purchase money. The place of tender or payment may, and frequently is, a different one from the place thé contract is executed. The place, therefore, where the act was done which gives the right to specific performance, does not determine where the contract sought to be enforced was made.</p> <p>It is true, as shown by the authorities cited by opposing counsel, that an offer must be accepted; but it does not follow that the two, the offer and the acceptance, may not be made at different places, nor does' it by any means follow that the place of the execution of the papers required by the terms of the contract, necessarily fixes the situs of the contract. In this very case the negotiations for the loans, and the loans themselves, were shown' by evidence to have been made in this state, the money was passed by lender to borrower here, and it was agreed to be repaid here. The execution of the notes and mortgages required by the lender were probably had in Louisiana, but nothing else was done there.</p> <p>Take a common sense view of this matter. When were the loans actually made ? Certainly not until the money was passed to plaintiffs, not until the bank sent the $250 by express and paid plaintiffs’ checks. And this was done in this state. The negotiations for the loans were had here, and the money was paid here to the order of the borrowers, and it was repayable here. If it be true that a contract is made where the last act is done which is necessary to render it obligatory, then, aside from the blanks in the note, the payment of the money to plaintiffs, in this state, was that act; before that the notes were not obligatory.</p> <p>Much stress was laid, by appellant’s attorney, upon a pretense that to maintain this suit is to give a retroactive effect to §2348, code of 1892. The first loan was made January, 1892, and the second one in June, 1892. These were consolidated, however, and usurious interest a second time stipulated for, in April, 1893, and the third and large note then given, and the two notes, one for $145, and one for $111, wholly for usury, were executed in 1894. Section 1141, code of 1880, which was in force when the loans were made, provides: “And if a greater rate of interest that ten per cent, shall be stipulated for in any case, all interest shall be forfeited. ’ ’ The code of 1892 provided: “And if a greater rate of interest than ten per centum shall be stipulated for or received in any case, all interest shall be forfeited, and may be recovered back, whether the contract be executed or executory. ’ ’■</p> <p>It will be noticed that the stipulating for excessive interest was unlawful under the code of 1880. So far as the stipulating for unlawful interest is concerned, the two codes are iden tical. The provision of the code of 1892, “and maybe recovered back,” etc., not in code of 1880, is purely remedial. The act of “stipulating for ” unlawful interest was just as illegal under the old code as it is under the new. So far as the receiving of unlawful interest is concerned, it was all received, in this case, after the code of 1892 had gone into effect.</p> <p>But it must not be forgotten that in April, 1893, when Auze and wife could have resisted the payment of all interest had they been sued, a new stipulation for usurious interest on the very loans was made by appellants. It then took the third note, consolidating the first two, and carried not only the previous unlawful interest into it, but stipulated for even more unlawful interest. The bank, under the old code, was not legally entitled to any interest, and yet it stipulated, April, 1893, for unlawful and for compound interest.</p> <p>Code of 1880, §1111, is penal, why? Because, in the language of the case cited and relied upon by appellant’s attorneys, Planters’ Bank v. Snodgrass, 1 How. (Miss.), 621, “it inflicts a loss of the entire interest, legal as well as usurious, upon the lender. ’ ’ The new provisions of the law, in relation to “stipulating for ” unlawful interest, are purely remedial.</p> <p>So, in this case, we have no new provisions of a penal nature relating to the contract, and we have besides a new contract, a new “ stipulation for ” unlawful interest after the code of 1892 became operative. But again, I will ask, why was the rule ever established, under the old law, that only excessive interest could be recovered in executed contract ? Judge Sharkey tells us (Parchman v. McKinney, 12 Smed. & M., 631 — 639,) that it was because of the equitable rule which would not allow a party to recover back what he had voluntarily paid without paying that which he might legally have contracted for. £ £ It has its foundation in the discretion which the courts of equity are said to have possessed in granting or withholding relief. On this foundation, and on this only can it rest. ’ ’ At law ££ the recovery of the excess may be had in an action for money paid, which being an equitable action, courts of law apply the equitable principle, and will not allow a party to recover back what he had Voluntarily paid without paying that which he might legally have contracted for. ’ ’</p> <p>These quotations show that the only reason why, both at law and equity, all interest could not be recovered under the old law was simply a rule of the court of equity. It was not because of any merit in a defendant or justice in his case. Legally, he was not entitled to retain any interest, but the court of equity, which was supposed to have a discretion in granting or withholding relief, impressed upon the controversy its own conceptions of what ought to have been done. Courts of law followed this rule when such cases were brought before them in an equitable action.</p> <p>Surely the legislature can, even in its application to existing or pre-existing contracts, abolish a rule of court. No man has any vested rights in them. No interest was ever due to the Commercial Bank from Mr. and Mrs. Auze, while, under the code of 1880, plaintiffs could not have recovered back anything but the excessive interest, yet, the reason was not predicated of any right in the lender. There has, therefore, been no change by the statute in appellant’s rights.</p> <p>This case ought to be made a warning to usurers. Nothing can be truer than Lord Bacon’s aphorism, which, if I remember it correctly, is in these words: ££ Usury bringeth the treasure of a realm or state into a few hands; for the usurer being at certainties, and the others at uncertainties, at the end of the game most of the money will be in the box. ’ ’</p>

From the circuit court of Pike county. This was a suit at law brought by LeBlanc against the Illinois Central Railroad Company, and a number of laborers in its employ, to recover damages for… Held: that he could not so recover. ’ ’ 77 Iowa, 190. Nevada. — “In all actions sounding in tort, no fraud or culpable negligence appearing, the injured party is entitled to full compensation for his loss, and Do more. Expressly adopting rule laid down in 45 Iowa, 429.” 13 Nev., 157.

From the circuit court of Pike county. In 1886 the Illinois Central Railroad Company, the lessee, and the Chicago, St. Louis & New Orleans Railroad Company, the lessor, jointly condemned about sixteen acres of land in section 11, adjacent to their main track near Chattawa, Pike county, and acquired the same in an eminent domain proceeding, from which to obtain gravel for the purpose of ballasting the roadbed, and established gravel pits thereon.

From the circuit court of Marshall county. The facts' are sufficiently stated in the opinion of the court. The action of the court in regard to the juror, Kilpatrick, was erroneous. The verdict had been just returned into court, and counsel offered to make affidavit as to what they expected to prove by the absent witnesses, Hargus and Hancock, and asked time to procure the attendance of these witnesses, who lived about thirteen miles from the courthouse.

<p>1. Evidence. Primary. Seoonda/ry.</p> <p>The best evidence should be produced, or its absence accounted for, after failure of efforts to secure it, before secondary evidence is admissible.</p> <p>2. Same. Lost writing.</p> <p>The party seeking to introduce evidence of the contents of a writing said to be lost or destroyed, must first give some evidence that the original once existed.</p> <p>3. Sixteenth Sections. Presumption.</p> <p>In the absence of sufficient evidence, a lease of a sixteenth section, by school trustees, will not be presumed.</p>

From the circuit court of Webster county. Chester Carroll, appellant, was indicted, tried and convicted under code 1892, § 1298, for the seduction of Agnes Boucher.

From the circuit court of Lee county. This was a suit upon two promissory notes executed by appellee to a national bank. The bank was placed in the hands of a receiver, appellant being appointed receiver. The second, fourth, and amended 'sixth pleas all averred, in variant forms, that the notes were executed for subscriptions to the capital stock of the bank. ' The plaintiff demurred to each of these pleas, and the court below overruled the demurrers.

From the chancery court of Clay county. Brogan, appellee, filed his bill of complaint against Gregory, appellant, and others, to confirm tax titles to a large body of land. Gregory defended as to a part of the land only. The chancery court confirmed the complainant’s titles, as prayed for, to all the land embraced in the suit; defendant, Gregory, alone appealed. We submit that the sale was not made as required by § 521, code of 1880.

From the chancery court of Monroe county. E. Lancitot, an insolvent merchant, conveyed all of his property on the same day by two instruments, the one first actually executed being a deed of trust to secure certain creditors, and the second a general assignment, executed about twenty minutes afterwards, and the general assignment covered the equity of redemption to the property in the deed of trust.

Prom decision of Chancellor Claude Pinta/rd, on habeas corpus, heard at Vicksburg. ‘ ‘ The executive warrant, to be sufficient, should show on its face three things: (1) That it has been represented to such executive that the accused stands charged in the demanding state with a certain specified crime, and that he has fled from justice; (2) that a demand has been made upon him for the surrender of such fugitive, pursuant to the constitution and laws of the United States; (3)…

From the chancery court of DeSoto county. ■ Blythe sold a tract of land to Bedford which was worth something like $2,200, in consideration of $1,000 cash and the obligation of Bedford that he would indemnify Blythe from liability in a certain pending suit to which the latter was a defendant.

From the circuit court of Yalobusha county, second district. The facts are stated in the opinion. The facts proved do not show that Wiley sold the whisky; they rather show, or tend to show, that he acted as the purchaser’s agent, to buy whisky for him, or as the agent of an unknown seller. Appellant was not indicted for acting as the purchaser’s agent, or for making the sale as the seller’s agent.

<p>From the chancery court of Panola county.</p> <p>The facts are stated in the opinion. Both parties appealed.</p> <p>We contend that the evidence shows that the agreement to accept $5,000 in full for the assets, and in settlement of M. J. Carey’s debts, was made, and that it was a valid and binding agreement; if so, then beyond all controversy, there was nothing due defendants when the $1,2U0 note was given, and it is with out consideration and void, as nothing has been advanced on it, all advances since that time having been paid for by M. S. Woodcock. If we are wrong in this contention, still, when all improper, unjust, illegal and extortionate charges and demands are disallowed, there is no balance due to defendants.</p> <p>The effort by J. D. Fulmer, trustee, to appoint a trustee in his stead, while not a good substitution of the trustee in the deed of trust, was, to say the least of it, an abandonment of the trust by himself, and was ground for an injunction against a foreclosure by him.</p> <p>The copies of copies of letters attached as exhibits to J. W. Fulmer’s deposition should have been struck out on complainant’s motion. They, together with the testimony based on and in explanation of them, constitute the bulk of the defense’s evidence, and they are clearly incompetent. The rule that copies of written instruments are inadmissible where the original is unaccounted for, and that notice must be given the adverse party to produce papers in his possession, applies as well to letters as to other writings. 1 Greenleaf on Evidence, 15 Ed., 116, and note 6; 1 Taylor on Evidence, p. 476. Besides this objection, they are, or pretend to be, copies of press copies, and if copies are to be offered at all, the press copies, which were in possession of the witness, should have been attached to the deposition. 'A still further objection is, that one of these letters was not written by the witness, and he claims no personal knowledge of it, of its contents or its transmission to complainants. 1 Taylor on Evidence, p. 476.</p> <p>Complainants by their proposed amendment sought to change the entire ground of their attack on the trust deed and note, and alleged an entirely new state of facts than that originally alleged. The court did not err in refusing to permit them to amend their bill. Neither an amended or supplemental bill, proposing to change the frame and character of the original bill, should be allowed. Glarle v. Hulls, 31 Miss., 520; Miazza v. Yerger, 53 Miss., 135.</p> <p>With the testimony before him, the chancellor in the court below found the facts to be that the note had not been paid, and that it was not void for want of consideration, as claimed in said bill; and we respectfully submit that the decree of the court below, when founded upon a question of disputed facts, will not be disturbed by this court, unless it clearly appear from the record that the decree is rendered against the preponderance of evidence, or under a misconstruction of the law of the case, therefore the decree of the court below, on the direct appeal, should be affirmed. Davis v. Richardson c& May, 45 Miss., 510; Apjple v. Qanong, 47 Miss., 196; Partee v. Bed-ford, 51 Miss., 84. It was probably erroneous to make Mrs. Woodcock a defendant to the cross bill filed by defendants with their answer, but she was the only person who could take advantage of that error. For cross appellants we contend that the court below erred in not dissolving the injunction. After the decree the trust deed could only be foreclosed for the balance of the trust deed debt, after crediting thereon the amount in the hands of Fulmer, assignee, to the credit of the Woodcock account, which was adjudged by said decree to go as a payment on the trust deed debt. Under § 572, of the code of 1892, cross appellants were, if the injunction be dissolved, entitled to damages, and we ask that the decree of the court be reversed as to that portion of it which refused to dissolve the injunction, and that the court enter a proper decree here, dissolving the injunction and awarding statutory damages.</p>

From the circuit court of Harrison county. Mrs. Maloney, appellee, owned a lot in or near Biloxi, along the rear of which a public road ran, with a passageway from the lot to the highway. The city railroad company, appellant, in the construction of its track, erected a trestle about three feet high and about three feet from appellee’s fence, which obstructed free passage from the lot to the highway or street. The suit was for damages by appellee against appellant.

From the chancery court of Tallahatchie county. The appellee, Davis, began this suit in the chancery court against the appellants, Godwin and others, to cancel the claims of defendants to the lands in controversy, and to remove them from the possession thereof.

From the chancery court of Chickasaw county, first district. Suit by Judah, appellee, against Stovall and others, to confirm title to lands. The decree of the chancery court was in complainants’ favor; the defendants appeal. The facts are stated in the opinion. If the court holds, as we contend it must, that the evidence is insufficient to show a reconveyance, then, was the Dundee Mortgage Company an innocent incumbrancer, and John M. Judah an innocent bona fide purchaser ?

<p>Railroads. Injury to animal. Wire fence. Right of way.</p> <p>If a horse is frightened by a train and runs into a place rendered dangerous by the proximity of a wire fence, erected by the company’s consent on the right of way, and a bluff of the cut in which the railroad is laid, and the danger is known to the engineer in charge of the train, and he can do anything which would save the animal from its peril and fails to do it, the company is liable for injuries to the horse resulting- from contact with the fence.</p>

From the chancery court of Monroe county. In 1891, D. C. Gilleylen, as guardian of appellant, Ernest Gilleylen, filed his final account, showing a balance due the ward, and, at the September term of the court, the said final account was approved, the decree adjudging that the ward was of age, and had been paid the balance due him shown by the final account.

From the chancery court of Quitman county. The facts are stated in the opinion. The right asserted by the bill is purely statutory. The constitution, sec. 160, has nothing to do with it, and, if it is not brought by the bill within § 3830 of the code, it cannot be maintained. The case of Ingersoll v. Jeffords, 55 Miss., 37, was held to be within the statute.

From the chancery court of Madison county. Branigan owned the land in controversy, and executed a mortgage upon it to Garrison.. At the maturity of the mortgage debt, Garrison, more than ten years before this suit was begun, took possession, and, while in possession, he mortgaged the premises to Brown, and, at the maturity of the debt to Brown, the latter took possession from Garrison, and is yet in the actual occupancy of the place.

From the circuit court of Panola county, second district. Appellant was indicted for the murder of one Mills, was tried and convicted of manslaughter, and appealed.

Prom the circuit court of Claiborne county. The facts are stated in the opinion of the court. Question of jurisdiction. —Can a citizen residing in a foreign state sue the Pullman Palace Car Company, which is a citizen of and resident in the same foreign state with himself, in the circuit court of Mississippi, for a tort committed in the foreign state, of which both of them are citizens and residents, neither of them being citizens of or residents in Mississippi ?

From the chancery court of Hinds county, first district. The facts are fully stated in the opinion. The question in this case was adjudicated in the case of the Natchez Building da Loan Associations. Shields, 71 Miss., 630.

From the chancery court of Bolivar county. The appellants obtained a money decree, in equity, in the circuit court of the United States for the northern district of Mississippi, at Oxford, against appellee, Lucy C. Freeman. From this decree said appellee prosecuted an appeal to tbe United States circuit-court of appeals at New Orleans, the appellees, Charles Scott and F. M. Scott, becoming sureties upon the appeal bond.

<p>Taxation. Levee taxes. Lands outside of levee not liable. Laws of 1858, p. 32; lews of 1867, p. 237; laws of 1871, p. 57; lews of 1888, %>. 40, construed.</p> <p>Lands lying between the Mississippi river and the levees built for protection against the waters thereof are not, under any law of this state, subject to taxes imposed for the construction of such levees or to meet liabilities incurred therein.</p>

<p>From the circuit court of the first district of Hinds county.</p> <p>The opinion states the case.</p>

From the circuit court of Claiborne county. The facts are sufficiently stated in the opinion. Appellant was represented in the lower court by another. His counsel here had no connection with his case until after his motion for a new trial had been overruled. The court below erred in allowing the introduction of evidence of more than one sale. Ware v. State, 71 Miss., 205; JYewmanv. State, 72 Miss., 126.

From the chancery court of Lauderdale county. The appeal in this case, which was denied by the chancery court, but was granted by the judges of the supreme court, was prosecuted by Weems and others, from the decree of the chancery court ordering them to pay into court the sum bid fox-property sold by the receiver. The opinion states the facts.

From the chancery court of Hinds county, second district. The opinion states the facts. The limitation attempted to be imposed upon the authority of Reed, in this case, was unreasonable, and not in accordance with the law governing such cases. The defense relied upon is not a meritorious one, and it was seized upon as an afterthought, merely to avoid the consequences growing out of a fall in the price of cotton.

From the chancery court of Tate county. The facts are stated in the opinion. A judgment is conclusive only in matters directly in dispute and actually decided, and in order to prove these matters material, it must appear from the j udgment that they were directly adjudicated. When a judgment is rendered, it only bars subsequent actions on matters actually settled by it.

From the chancery court of Coahoma county, first district. The American Cooperage Company, a corporation doing business at Friar’s Point, in this state, borrowed $10,000 from Cyrus H. McCormick, and among other securities given for the loan, was a list of personal property, which was agreed to be pawned; whether this property was delivered so as to render the pledge valid was a controverted question in the case.

From the circuit court of Adams county. The facts are stated in the opinion. It was error in the court below to admit testimony in respect to the general condition of the street railway track, and in respect to specific instances of defects in the track in other places than that of the accident; and also to give instructions to the jury turning upon that sort of testimony.

From the circuit court of Washington county. ■ The facts are stated in the opinion. The amended plea sets up not only a failure of consideration, but that the payee falsely represented himself to be the holder of the original note. There was not only the defense of a failure of consideration, or, rather, want of consideration, but also of fraud by the payee, which vitiated the note in the hands of any subsequent holder.

From the circuit court of Pontotoc county. The opinion states the facts. I respectfully submit that the justice of the peace, Pitts, before whom this case was tried, had no jurisdiction of the case, for, in fact and in law, there was no change of venue from the mayor’s court to the court of said Pitts.

From the circuit court of Tallahatchie county. The facts are stated in the opinion. We think the proof abundantly shows that the defendant was a storekeeper in the ordinary sense of that term, and certainly as contemplated by the revenue act of 1896 and the decisions of this court.

Erom the circuit court of Claiborne county. The facts are stated in the opinion. This case turns on the construction of §§ 4194 and 4199 of the code of 1892. The whole question resolves itself into this: Which is the precedent claim to the fund realized ? The state, county, and municipality, or the officers of the court ? Where an officer collects taxes by distress, the tax must first be paid out of the fund realized, before the costs incurred in collecting.

From the chancery court of Chickasaw county, first district. The town of Houston issued $4,000 in bonds for municipal purposes. The appellants enjoined the collection of a small amount of taxes levied on their property to pay these bonds. Their bill for injunction was demurred to and the demurrer sustained, injunction dissolved and $40 attorneys’ fees awarded against complainants. From this interlocutory decree the complainants prosecuted an appeal.

From the chancery court of Noxubee county. Bill in equity by J. H. Aust et al. against C. Rosenbaum, seeking to redeem mortgaged premise’s. From the decree of the court below denying redemption, complainants appealed.