Volume 75 — Mississippi Reports

Feom the circuit court of Holmes county. HoN. W. F. SteveNS, Judge. The facts are sufficiently stated in the opinion of the court. If in the pursuit of the history of these bonds it should be ascertained that such bonds were not authorized by or were not in conformity with the statute under which they purport to have been issued, they are illegal in the hands of every person, whether a Iona fide holder or not.

From the circuit court of Lafayette county. HoN. Eugene Johnson, Judge. The facts are fully stated in the opinion. The plaintiff had the right to show by parol proof that the written contract signed by him did not express the real consideration of the purchase.

<p>1. Raii/roads. Infant passenger. Conductor's promise.</p> <p>A railroad, conductor’s promise to look after a seven-year-old Boy, and to request the succeeding conductor to do so, does not bind the company.</p> <p>2. Same. Inquiry for inf ant. Answer of eonductw.</p> <p>A negative answer by a railroad conductor, when asked by one interested, at a station where the train had stopped, if he had a seven-year-old boy on the train, does not render the company liable for damages, although, the boy be on the train and be carried beyond such station, which was his destination.</p>

From the circuit court of Lowndes county. HoN. NewnaN Catoe, Judge. The facts are stated in the opinion of the court. The demurrer to the indictment should have been sustained. Bishop on Criminal Procedure, vol. 2 (2ded.), sec. 840. But if the amount of the punishment depends upon the value, it must, in these cases, as in all others, be alleged.” State v. Shadley, 16 Ind., 230; Code 1892, §1209; lb., §1453; Wile v. State, 60 Miss., 260.

From the circuit court of Lauderdale county. HoN. JohN W. Fewell, Judge. The facts are stated in the opinion of the court. Held: in Pennsylvania in 1871, to be indictable at common law. Ib., citing Morris Nun Goal Go. v. Barclay Goal Co., 18 Pa. St. (18 P. F. Smith), 173.

From the, circuit court of Lauderdale county. Hon. G. B. Huddleston, Judge. This was an action brought by plaintiffs, mortgagees, upon a policy of fire insurance issued to the mortgagor, with recitals and provisions in the policy as stated in the opinion of the court. The defendant, insurance company, demurred to the declaration. The demurrer was sustained in the court below, and the plaintiffs appealed.

<p>1. Insurance. Fire policies. Construction. Rules.</p> <p>There are two fundamental rules governing- the construction of fire insurance policies. First, since they are usually prepared by the insurer, they are to be construed most strongly in favor of the assured. Second, such policies must always be .construed with reference to the nature and kind of property insured, the uses to which, within the common knowledg-e of men, it is ordinarily put, and the custom of the country in dealing with it.</p> <p>2. Same. Petri ivritten, pcurt printed.</p> <p>The rule that the written part of an insurance policy prevails oven the printed part, is applicable only where there is irreconcilable conflict between them.</p> <p>3. Same. Ambiguous terms.</p> <p>When a party expresses his liability in terms having two meanings, one broader than the other, and each equally probable, he cannot, after an acceptance by the other contracting party, set up the narrower construction.</p> <p>4. Same. Inconsistent stipulations.</p> <p>If a policy of fire insurance is prepared by the insurer, and contains inconsistent stipulations, the meaning most favorable to the insured will be adopted.</p>

From the chancery court of Yalobusha county, sebond district. IIon. T. B. Kimbrough, Chancellor. Appellee filed his bill in equity to enjoin the railroad company from laying a side track in the city of Water Yalley.

From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. The facts are stated in the opinion. On February 19, 1892, before the case was at issue, either upon the question of attachment or upon the merits, the legislature passed an act dividing Coahoma county into two judicial districts.

Feom the chancery court of Adams county. Hoist. Claude Pintard, Chancellor. The opinion states the case. It was fully shown that G. Malin Davis, deceased, the ancestor of the defendant, George D. Kelly, in foreclosing the mortgage on the Greenfield plantation and purchasing the same, did so under the express agreement that he would hold the title as security for the mortgage debt and his legacy, and he never intended to hold it otherwise.

<p>Waiver. Manager’s Men on crops. Code 1892, l 2682.</p> <p>Where the manager of a plantation ships cotton produced thereon under his management, to he sold in the market of a neighboring town, he waives his lien as an employe under § 2682, code 1892, and cannot maintain a suit for a conversion of the cotton against a factor who had received the cotton of the consignee, and «old the same, and applied the proceeds to the credit of the plantation or to that of its owner.</p>

Eeom the circuit court of Lauderdale county. Hon. G. B. Huddleston, Judge. The appellant', who was the mother of Jeff Stephens, the insured, sued the appellee on an accident insurance policy, of which she was the beneficiary, containing the several stipulations set out in the opinion of the court. The appellee, among other defenses, pleaded that it was only liable for one-tenth of the amount of the policy.

From the chancery court of Lincoln county. Hon. H. C. Conn, Chancellor.

Ehom the circuit court of Marshall county. Hon. Z. M. Stephens, Judge. This was a proceeding by quo warranto brought by the district attorney,, on the relation of R. H. Tunstall, for the purpose of ousting the appellee, Matthews, from the office of marshal of the city of Holly Springs.

From the circuit court of Holmes county. Hon. W. F. Stevens, Judge. The opinion states the case. The reporter finds no briefs in the record of this case.

FROM the circuit court of Tunica county. Hon. F. A. Montgomery, Judge. The opinion states the case. Section 86, code 1892, provides that anyone convicted may appeal from the judgment of a justice of the peace, and that the case shall, in the circuit court, be tried de novo. It also directs that ‘ ‘ the case shall be tried anew and disposed of as other cases pending in said court ” (the circuit court).

From the circuit court of Leflore county. Hon. R. W. Williamson, Judge. This was an action for $5,000 brought by Rozalie Stein on a benefit certificate for that sum issued to. her husband, Marx Stein, on the twenty-third of January, 1893, by the board of control of the endowment rank, Knights of Pythias, under the seal of the supreme lodge.

From the chancery court, second district of Hinds county. HoN. H. C. Conn, Chancellor. The facts are sufficiently stated in the opinion of the court.

From the circuit court of Tippah county. HON. Z. M. STEPHENS, Judge. The appellant was indicted and tried for rape. During the trial, and after the state had closed its evidence without introducing her, Addie Nelson, the injured party was placed on the stand as a witness for the defense, and was, in the opinion of the judge, palpably guilty of perjury.

From the circuit court of Washington county. HoN. F. A. MoNtgomery, Judge. The facts are thus stated by the attorneys for the state, in the abstract of the record filed by them, and its correctness was conceded by the attorney for the appellee: The State of Mississippi raised, with its convicts, cotton in the Mississippi levee district, in the year 1895. The state undertook to ship this cotton to a market outside of the district.

From the circuit court of Leflore county. Hon. F. A. Montgomery, Judge. Held: upon trial of the claimant’s issue, that plaintiffs’ judgment was void, because one of the parties against whom it was rendered was dead at the date, of its rendition, and decided for the claimant. The plaintiffs appealed.

FROM the circuit court of Lowndes county. Hon. Newnan Cayge, Judge. The appellant was indicted and tried for arson. On the trial the defendant, as a witness in his own behalf, swore to. an alibi, but did not introduce his wife as a witness.

FROM the circuit court of Lauderdale county. Hon. G. B. Huddleston, Judge. The appellant was convicted of the unlawful sale of intoxicating liquor. On the trial the defendant’s attorney asked the state’s sole witness the question: “State whether, about the middle of June of this year, 1896, you were in 0.

Feom the circuit court of Holmes county. Hon. W. F. Stevens, Judge. The facts are sufficiently stated in, or are clearly inferable from, the opinion of the court. We think this case is completely covered by the case of Louisville, eto., H. R. Go. v. Bigger, 66 Miss., 321, and the Bigger case is the only authority necessary for us to cite.

Feom the circuit court of Washington county. Hon. F. A. Montgomery, Judge. Appellants were the owners of 'a plantation in Washington county, and leased the same for the year 1893. The tenants, in the spring of the year, executed a deed of trust on the crops to be grown on the leased premises, to appellees, and in the fall of the year shipped the cotton raised to appellees, in Memphis, Tennessee, leaving the rent largely unpaid.

From the circuit court of Bolivar county. Hon. F. A. Montgomery, Judge. The appellant, plaintiff, sued the county of Bolivar. The aver-ments of the declaration are sufficiently stated in, or are infer-able from, the opinion. The defendant, appellee, demurred to the declaration; the court below sustained the demurrer and dismissed the suit. The plaintiff appealed.

<p>Privikegk Tax. Municipalities. Code 1892, ji 2972.</p> <p>Municipalities, operating under chapter 93 of the code of 1892, may, under l 2972 thereof, impose a license tax as therein provided, only upon such callings, trades, professions and occupations as are so taxed by the state.</p>

From the chancery court of Warren county. Hon. Claude Pintard, Chancellor. The facts are stated in the opinion of the court. It is perfectly evident that the Knights of Pythias never intended to engage in the insurance business indiscriminately.

Eeom the chancery court of Warren county. Hon. Claude Pintard, Chancellor. Held: with substantial unanimity, that a written assignment is not necessary in such cases, and that the delivery of a chose in action, under such circumstances as would constitute a gift of personal property in possession, amounts to an equitable assignment of the property represented, which the courts will recognize and uphold. ” In a…

Fbom the circuit court of Monroe county. Hon. Newnan Cayce, Judge. The appellants, Ferguson & Head, procured a petition to be presented to the municipal authorities of Aberdeen, in accordance with § 1578, code of 1892, asking the grant of a license to them to retail intoxicating liquors. The mayor and several of the aldermen, and many other qualified voters, signed the petition.

Fbom the circuit court of Grenada county. Hon. C. H. Campbell, Judge. Jonathan Payne, a farmer, executed a deed of trust early in the year 1895 to W. P. Cox, trustee, for the benefit of Mrs. E. A. Cox, conveying some personal property, specifically described, and the crops to be grown in said year on his farm, to secure a debt of $48.50 already owing, but not due, and $250 to be advanced in supplies by Mrs. Cox. The debts were to mature November 1, 1895.

Prom the circuit court of Copiah county. Hon. Robert Powell, Judge. Action by plaintiff for damages for the killing of his son, Solon H. Howell, Jr., an infant, at Hazlehurst, Miss., on May 2, 1895. Held: in repeated cases, that to a trespasser on the train or on the track, be he infant or adult, the company owes no duty other than not to wantonly or wilfully injure him.

From the chancery court of Lauderdale county. HoN. W. T. HoustoN, Chancellor. The facts are sufficiently stated in the opinion of the court. It is submitted that upon the pleadings the appellant was entitled to a final decree dismissing the bill. All the material .allegations of the bill were denied by the answer, and no testimony was taken. In this state of case the court ought to have decreed for appellant.

From the circuit court of Madison county. HoN. Robert Powell, Judge. Dorroh, a farmer, employed Abe Green to work on the farm during the year 1897. Dorroh and Abe had trouble with each other about Abe’s gobbler getting into Dorroh’s yard, and Abe’s pigs getting into Dorroh’s rye patch; and Abe, vexed by complaints of these matters, notified Dorroh that he would work for him no longer and would leave the place. Dorroh forbade bis going.

<p>From the chancery court of Yazoo county.</p> <p>HoN. PI. C. CoNN, Chancellor.</p> <p>The opinion states the case.</p> <p>Was the “liability incurred ” by the principal, Pugh, to the surety, Washburn, at the time of the making of the note by Pugh and Washburn to Plainer, or was the “liability incurred ” by Pugh, the principal, to Washburn, surety, at the time of the payment of the note by Washburn, the surety % This question involves a construction of the “proviso ” to art. 281, p. 529, of the code of 1857, which reads as follows: “Provided, That the laws now in force, respecting the exemption of real estate from execution, shall apply to all contracts made and liabilities incurred before this act shall take effect,” and the expression in the body of said article, as follows: “Entitled to hold, exempt from seizure and sale under any execution, judgment or decree, founded on any contract made or liability incurred after this act shall take effect. ”</p> <p>Under this article there are two separate and distinct sources from which the execution may emanate: First, from a contract made; and, second, from a “liability incurred.” The term ‘ ‘ contract made ’ ’ has reference to a contract upon which suit may be brought and a judgment or decree obtained. The word “liability” is defined by Anderson, in his law dictionary, to be “ that condition of affairs which gives rise to an obligation to do a particular thing to be enforced by action.” Haywood v. Shrives, 44 N. Y. L., 104 (1882); Wood v. Carry, 57 Cal., 209 (1881). And by Bouvier, in his lkw dictionary, as follows: “Liability is responsibility; the state of one who is bound in law and justice to do something which may be enforced by action. ’ ’ McElfresh v. Kirlcendall, 36 la., 226. The word “incur” is defined by Anderson as follows: “Men contract debts affirmatively; they incur liabilities — -the liability is cast upon them by act or operation of law. ” “ Incur ’ ’ implies, then, something not embraced in the words ‘ ‘ debts and contracts.” Crandall v. Bryan, 15 How. Pr., 56 (1857); 5 Abb. Pr., 169; 14 Barb., 202; 4 Duer, 101; and the word is defined in 10 Am. & Eng. Ene. L., 398, as follows: “To become liable or subject to.” Scott v. Tyler, 14 Barb. (N. Y.),. 204. Men contract debts; they incur liabilities. In the one-case they act affirmatively, in the other the liability is incurred or cast upon them by operation of law. The words "liability ’ ’ and ‘ ‘ incurred, ’ ’ as defined above, should be taken not separately, but together as one phrase, “liability incurred,” in order to get the proper meaning of the statute under consideration. And thus taken, the expression, “ liability incurred, ” is synonymous with "cause of action, ’ ’ as distinguished from “ right of action; ” and “cause of action” is defined by Anderson as ‘ ‘ the right which a party has to institute and carry through a proceeding.” Article 281, p. 529, of the code of 1857, speaks in the past tense, and contemplates and has ref■erence to "liabilities incurred” ‘ ‘ before ’ ’ its passage, or "causes of action ’ ’ already existing, and upon which the right "to institute and carry through a proceeding ’ ’ existed at the time of its enactment. In other words, a liability which was absolute, and by which the relation of debtor and creditor then existed between the parties at the time of the enactment of the •code of 1857; that is, liabilities already‘incurred, and upon which suit might then, at the enactment of the code of 1857, ■be brought.</p> <p>Next, the questions arise: (1) When did the "cause of action ’ ’ arise in favor of the surety against the principal ? (2) When did the relation of debtor and • creditor arise between them ? (3) When did the liability become absolute ? (4) When was the "liability” incurred by Pugh to Washburn?' (5) Did these things happen at the time of the making of the note or at the time of its payment by the surety ? It may be contended, on the part of the appellees, that a conditional, contingent, implied liability’on the part of the principal to reimburse the surety arose at the time of the making of the note. This is as far as this court has ever gone towards holding that the relation of debtor and creditor existed between principal and surety before payment, but, it must be remembered, that the cases in which this conditional, contingent, implied liability is held to exist before payment {May v. Williams, 61 Miss., 133, and Long bridge v. Bowland, 52 Miss., 546) are cases passing upon this relationship as within the statute of frauds, which is one of the two exceptions to the general rule that the surety is not the creditor of the principal until after payment, the other exception being the right to maintain quia timet bills before payment. lee v. Griffin, 31 Miss., 632; Bank of England v. Tarleton, 23 II)., 173; Pennington v. Seal, 49 lb., 518.</p> <p>In Long bridge v. Bowland this court declined to say whether, in that particular case, the relation of debtor and creditor existed at the date of a certain deed, but held that ‘ ‘ whether the surety is esteemed the creditor of the principal from the date of his suretyship, or the date of the payment of the debt, depends very much on the character of the remedy or redress which he may seek. ’ ’ The case of May v. Williams, above, on which much reliance is placed by appellees, decides-no more than had already been held in Pennington v. Seal and Lough,ridge v. Lowland, above, except that it does hold that the relations of debtor and creditor do not arise between principal and surety until payment by the surety, and the utterances therein contained, with this exception, have reference entirely to principal and surety as within the exception, the statute of frauds. But a conditional, contingent, implied contract does not fill the measure of the statute, which says “liabilities incurred,” for the following reasons: (1) The condition of such implied contract is a condition precedent, and is-one which must happen before either party becomes bound by the contract [Anderson’s Law Die., 222]; (2) the word “contingent ’ ’ implies that no present right exists, that whether a right ever will exist depends upon a future, uncertain event. Anderson’s Law Die., 245; Jamison v. Blowers, 5 Barb., 692; Haywood v. Shreves, 44 N. Y. L., 104. Under such conditional, contingent, implied contract no right existed at the time-of the enactment of the law of 1857, because the surety had not then paid, and therefore there was no ‘ ‘ liability incurred ” by the principal to the surety before the act of 1857' took effect. No “ cause of action ” arose in favor of the surety against the principal until payment by the surety, because the-surety cannot recover from the principal the debt for which he-is surety before payment, and the fact that the surety has no-such remedy against the principal is due to the fact that there is no “ liability incurred ’ ’ by the principal to the surety before payment. Lessley V. Phipps, 49 Miss., 790. The relation of' debtor and creditor, between them, does not exist befp,re payment by the surety.</p> <p>The question presented is not a novel one. It has been decided by many courts in many cases, and always in- one way, so far as we know. In May v. Williams, 61 Miss., 125, Cooper, J., said, in speaking of the principal’s liability to indemnify the surety, as existing before payment by the latter, that it was an implied contract, made by the principal with the surety, the promise being to the latter as to a creditor, not a debtor. He said, further: ‘‘ Nor are we able to perceive that the contract of the promisee [surety] is anterior to that of the’ principal in the bond. Until the surety assumes responsibility by executing the bond, the agreement of the promisor to indemnify is only a proposition, which may be withdrawn by him or declined by the promisee. It is only when the proposition is acted on by the promisee that the contract becomes absolute; but at the very instant that it thus becomes a contract, there also springs up an implied contract of the principal to do and perform the same act, viz., to indemnify the surety against the loss. It arises at the same moment, exists to the same extent, is supported by the same consideration, broken at the same instant, and is discharged by the same act, whether it be done by the principal in the bond or by the pr'omisee in the contract to indemnify. ’ ’</p> <p>It would be hard to imagine clearer or stronger language, and by it this court is committed to the doctrine for which we contend. Yet the same proposition had frequently before been announced by this court in language no less clear. In Lough-ridge v. Bowland, 52 Miss., 5é6, Simrall, C. J., in discussing the question whether a surety, before payment of the debt, was .a creditor, within the meaning of the statute, against fraudulent conveyances, and answering it in the affirmative, said: "When Bowland became bound as surety, there sprang up at once the contingent liability to him, on the part of Chears, that if he paid the debt, then Chears would’ indemnify'- or reimburse. The contingent undertaking became absolute on the act of payment, but it existed all along.” Pennington v. Seal, 49 Miss., 518.</p> <p>The language of other courts is to the same effect. In Pice y. Southgate, 16 Gray, 142, Bigelow, C. J., said: “Upon well-settled principles it is clear that the contract of a principal, with his surety to indemnify him for any payment which the latter may make to the creditor in consequence of the liability .assumed, takes effect from the time when the surety becomes responsible for the debt of the principal. It is then that the law raises the implied contract or promise of indemnity. No new contract is made when money is paid by the surety, but the payment relates back to the time when the contract was entered into by which the liability to pay was incurred. The payment only.fixes the amount of damages for which the principal is liable, under his original agreement to indemnify the surety.” And in Beach v. Boynton, 26 Yt., 734, Redfield, C. J., said: “There is really a right to be indemnified on the part of a surety, and a duty on the part of the principal to indemnify, as if it were in the form of a bond. . . . And if necessary, for any purpose, to show the date of his claim, he may declare upon his implied duty or promise to save harmless, which is certainly recognized in the elementary writers upon this subject, and in most of the cases,” citing authorities.</p> <p>The argument of appellant’s counsel rests to a large extent upon the numerous decisions of this court in which it was held that the surety’s right of subrogation to the rights of the creditor arose, as matter of natural equity, upon payment of the debt by him, from which counsel appeared to deduce the proposition that all the surety’s right began with such payment. The surety’s rights are broader, and begin with the very contract of suretyship itself. In the nature of things the surety cannot have either a right of action or equitable right to subrogation until he pays, but the cases cited prove that his inchoate right to both exists even before payment. Counsel’s mistake is in confounding these remedial rights with the'original contract of indemnity, for the breach of which both are given. Of necessity they rest upon the breach, but of equal necessity the breach implies an anterior contract or promise. And if the extent of the surety’s “ natural equity” is the mere right of subrogation to the creditor, then, indeed, is the appellant hopelessly lost, for the note itself was certainly a contract made, and represented a liability incurred prior to the code of 1857, and no holder of it, by subrogation or otherwise, can overcome the homestead right in fee given by the law prior to November 1, 1857. If the holder of that note, then, is unable to subject the homestead, it would be a strange anomaly if the surety thereon, or his representative, could do so. It would be a curious result if his claim for reimbursement merely, without subrogation, should be broader than the “natural equity” claimed for him by counsel.</p>

Feom the circuit court, first district, Hinds county. Hon. Robert Powell, Judge.

Feom the chancery court of Holmes county. Hon. A. M. Byrd, Chancellor. 'The opinion states the case. Appellee’s attorney assumes two contrary positions — one that by parol agreement he is entitled to a wall on appellant’s land, under chapter 99 of the code, regulating party walls, and the other that it is not a party wall in any sense, and is the property solely of appellee, subject to divestiture by appellant’s paying for and using the second story wall.

From the chancery court of Attala county. Hon. A. M. Byrd, Chancellor. This wa's a proceeding to establish a nuncupative will as having been made by Elizabeth Julia Ann Unger, deceased. The facts, so far as necessary to an understanding of the decision, are stated in, or are clearly inferable from, the opinion of the court.

FROM the circuit court of Holmes county. Hon. W. F. Stevens, Judge. The facts are stated in the opinion. Held: as a matter of fact, that they were not, independently of the question of bona fides. The smallest portion of benefit or accommodation is sufficient for a consideration. Austin v. McLean, 1 U. S., 811; Lawrence v. McOallmont, 11 U. S., 452.

From the circuit court of Holmes county. Hon. W. F. Stevens, Judge. Held: in numerous cases, that the assent of the shipper to the terms and stipulations of the bill of lading may be implied from the acceptance of the same by the shipper and his failure to dissent.

Fbom the chancery court of Attala county. Hon. A. M. Byrd, Chancellor.

From the circuit court of Bolivar county. Hon. F. A. Montgomery, Judge. The opinion states the case. A teacher’s good moral character is presumed when he holds a first-grade license. Proof of such character was required before issuance of license. Code 1892, § 4021.

Feom the circuit court of Sunflower county. Hon. F. A. Montgomery, Judge. Held: however, that the paragraph in § 1292, code 1880, relative to the lease of land, which is the same as paragraph (c), § 4225, code 1892, had reference not to the date of the agreement, but to the duration of the term, basing the opinion almost entirely upon the fact that as the paragraph relative to the making of an agreement not to…

FROM the circuit court of Winston county. Hon. Gr. 'B. Huddleston, Judge.

From the circuit court of Harrison county. Hon. Thaddeus A. Wood, Judge. The appellant was indicted for the murder of one Minnie Swan.

Feom the circuit court, second district, Chickasaw county. HoN. Newman Cayoe, Judge. The facts are stated in the opinion. We are aware that it is held in many cases that the specific crime intended to be committed must be named, but we do not think this court will consider it necessary to set out the crime, when it is charged by the grand jury that the crime intended to have been committed was to said grand jurors unknown.

Feom the circuit court of Marshall county. ITON. Z. M. STEPHENS, Judge. The facts aré sufficiently stated in the opinion.

From the circuit court of Attala county. HoN. W. F. Stevens, Judge. The facts, in so far as necessary to an understanding of the decision, are stated in the opinion of the court. The original affidavit charged no offense in this case under the statute of the state. Newman v. State, 69 Miss., 393.

From the circuit court of Madison county. Hon. W. H. Powell, Special Judge. This was a suit by appellee, Greaves, against the railroad company for the value of two horses killed on the track by the cars. The suit was begun before a justice of the peace, who decided the case in favor of defendant.

Fbom the circuit court of Leflore county. Hon. F. A. Montgomery, Judge.

From the circuit court of Holmes county. Hon. W. F. Stevens, Judge. The facts are stated in the opinion. There is not a scintilla of evidence in the record that any one else besides the plaintiff passed through the space between the cars. There is no pretense that any of the employes of the railroad company knew that the plaintiff was passing through there or that the plaintiff was there at the time the accident occurred.

Feom the-circuit court, first district, of Hinds county. Hon. Robert Rowell, Judge. Held: so far as we find, with but one exception, that this stipulation is valid, and that on such tickets, the company selling the ticket is the agent of the connecting carrier, and that each coupon entitling the holder to ride on the connecting line must be treated as if it was a ticket sold by the agent of the connecting line at its own…

From the circuit court of Scott county. Hon. A. G. Mayers, Judge. This was an action upon a fire insurance policy. Held: in Continental Ins. Co. v. Mansfield, 45 Miss., 311, that a declaration which did not aver that the insurance company was a foreign corporation, and that it had an agent for the service of process in this state, giving his name, did not aver the necessary jurisdictional facts.

Peom tbe circuit court of Tallabatcbie county. Hon. P. A. Montgojiebt, Judge. Tbe opinion states tbe case. If tlie description employed in tie several deeds under review expresses only a latent ambiguity, it must be treated as sufficient under tie agreement of counsel, as it could be readily shown by parol evidence to wiat land it was intended to have application. But tie description, “Lot 36, in tie town of Webb,” is patently ambiguous.

í'eojii the circuit- court of Leflore county. Hon. F. A. Montgomeev, Judge. The opinion states the case.

Feom the circuit court, first district, of Hinds comity. IIon. Robert Powell, Judge. This suit had its origin in the efforts of the state revenue agent to collect from the ice company taxes due to the city of Jackson for the years 1886, 1887, 1888, 1889 and 1890, and which he claimed said company had wrongfully escaped.

Prom the chancery court of Bolivar county. Hon. A. H. Longino, Chancellor. In the year 1889, W. H. Jeffreys was doing business ás a merchant in his own name at Duncan, in Bolivar county, Mississippi, and continued in the mercantile business, alone, until some time during the month of January, 1890, he formed a partnership Aith Burbridge & Houston, under the firm name of W. H. Jeffreys & Co.; Jeffreys owning a one-third interest in the firm.

Fbom the chancery court of Yazoo county. HoN. H. C. ConN, Chancellor. The facts are stated in the opinion of the court. 1. The court below erred in its conclusion that there was no such participation by Champlin in the violation of the Sunday law as should subject him to its penalties. It is true he was not present when the notes and deed of trust were signed, but they bore date on Sunday, and he was affected with notice of all that was shown by the face of the writings.

Fbom the chancery court of Noxubee county. Hon. A. M. 'Byre, Chancellor. The facts are stated in the opinion of the court. I assert the following propositions, and insist that each one of them is maintained by the evidence. A careful consideration of the proof will show that appellants and cross appellees were entitled to the entire relief prayed for by them.

FROM the chancery court of Washington county. Don. A. H. Longino, Chancellor. The complainants, appellees, in addition to being citizens and taxpayers of Greenville, were engaged in carrying on the business of butchers and vendors of fresh meats therein.

From the circuit court of the first district of Hinds county. Hon. Robert Powell, Judge. This was an action for $2,000, brought by the appellant on a benefit certificate for that sum, issued to her son, Philip Schanzenbacker, in April, 1894, by the board of control, Knights of Pythias, on the surrender of one for $1,000, issued to him in February, 1894.

From the circuit court of Sunflower county. Hon. F. A. Montgomery, Judge. The chancery court case mentioned in the opinion was, as made by the original bill, a proceeding to redeem an undivided interest in the land from the tax sale, and for partition of the tract between original complainants and defendants.

<p>FROM the circuit court of Tallahatchie County.</p> <p>Hon. F. A. Montgomery, Judge.</p> <p>The opinion states the case.</p> <p>It was reversible error on the part of the court below to refuse the continuance asked for by appellant. Borroum v. State, 22 So. Rep., 62; Hill v. State, 72 Miss., 527.</p> <p>Filed a brief discussing the facts, and also citing Borroum v. State, 22 So. Rep., 62.</p> <p>Contended that the showing made for a continuance was insufficient, and cited Lamar v. State, 63 Miss., 265.</p>

From the circuit court of Clay county. Hon. W. F. Stevens, Judge. The facts are stated in the opinion of the court. If the plaintiff’s witnesses are to be believed, it cannot be questioned but that the servants of the railroad company, after seeing the peril of the horses, failed to do everything or anything in their power to prevent injury to them. These witnesses certainly swore that the animal whose value is sued for was struck by a train of defendant.

From the circuit court of Tallahatchie county. Hon. F. A. Montgomery, Judge. The statute referred to in the opinion is in these words: “ 683. What goleas in har may he pleaded together.

From the chancery court of Holmes county. HoN. A. M. Byrd, Chancellor. Opinion states the case. A way of necessity arises when the owner sells land to another, which is wholly surrounded by land of the grantor, or partly by lands of the grantor and partly by land of a stranger, in which case a purchaser has the right of Avay through the grantor’s land to arrive at his own. 19 Am. & Eng. Enc. L., 96.

Feom the circuit court, second district, of Hinds county. Hon. Eobert Powell, Judge. John Chase was indicted for a misdemeanor. In the progress of his trial the court, in the presence of the jury, acting under code 1892, § 1384, caused the arrest of a defendant’s witness for perjury.

Fkom the chancery court of Bolivar county. IioN. W. E. Trigg, Chancellor. In September, 1891, the Smith Sons’ Gin & Machine Company, the appellee, sold a steam cotton gin, press, etc., to one Dewberry upon credit, reserving title to the property as security. In March, 1892, the seller recovered a judgment against Dewberry at law upon the purchase money debt, which judgment was duly enrolled.

From the chancery court of Washington county. Hon. A. H. Longino, Chancellor. Appellant, Robert Hinds, in 1891 was a married man, the head of a family and the owner of a tract of land containing two hundred and forty acres. His father, Thomas Hinds, owned four hundred acres of land contiguous to a portion of the son’s tract.

From the circuit court of Lauderdale county. Hon. G. B. Huddleston, Judge. The opinion states the case. The testimony shows conclusively “such absence from the room, on the part of the judge, as constituted a temporary relinquishment of the control of the court and of the conduct of the tiial,” which this court, in the case of Turbeville v. State, 56 Miss., 793, said would necessitate a reversal.

From the circuit court of Lee county. Hon. Z. M. Stephens, Judge. Action for damages resulting to plaintiff from defendant’s failure to deliver one hundred barrels of flour sold to him by defendant’s agent. Plaintiff’s loss, by reason of the advance in the price of flour, being 93 cents per barrel or $93 on the lot. Action begun by attachment, defendant being a foreign corporation.

From the circuit court of Lafayette county. Hon. Eugene Johnson, Judge. The opinion states the case. The only issue in the case was.the plea of defendant that he was not administrator at the commencement of the suit. It will be observed that the single plea filed is not one of plene administravit, but is one of ne unques administrator.

Enom the circuit court, second district, of Coahoma county. Hon. F. A. Montgomeiíy, Judge. The facts are stated in the opinion of the court. The idea of the court below that the directors could not be held liable unless brought, as stockholders, within § 844, code 1892, is wholly unsound. The plaintiffs should have been allowed to show that their money was lost to them by the fraud of the directors and cashier. JJelan v. Case, 2 Am. St. Rep., 81; Sealy.

Feom the circuit court of Lauderdale county. Hon. G. B. Huddleston, Judge. Held: nor do I deny that the last clause of the verdict, after it has been accepted by the court without error, is sur-plusage. But I do insist that when a verdict is presented to the court in doubtful, ambiguous or ‘ ‘ cloudy ’ ’ terms, it is error for the court to refuse to ascertain the meaning of the doubtful words, to dispel the cloud.

!FROM the circuit court of Kemper county. Hon. Gr. B. Huddleston, Judge. The facts are stated in the opinions. Held: probably not incompetent, and, as specific objection was not made to this part, there was no error. People v. Taylor, 59 Cal., 640, illustrates, in a case of poisoning, the sort of opinion which is not competent.

Feom the circuit court of Bolivar county. Hon. F. A. Montgomery, Judge. The remarks of the district attorney set out in the motion for new trial were improper, and constitute reversible error. So, also, does the action of the lower court in refusing the second instruction asked by the accused, which followed § 1425, code 1892. The accused was convicted by improper means. Lamar v. State, 64 Miss., 687; Hyman v. State, 74 Miss., 829.

From the circuit court of Tallahatchie county. Hon. F. A. Montgomery, Judge. Henry Pulliam, an infant in his seventeenth year of age, was killed by the cars of the railroad company, in December, 1896, within the corporate limits of the village of Oakland, in this state, under the circumstances stated in the opinion of the court.

Feom the circuit court of Noxubee county. Hon. G-. B. Huddleston, Judge. The appellant, Johnson, was indicted for the murder of one Jared Jordan. The instructions for the state, mentioned in the opinion of the court, are as follows: “1. If the jury believe, from the evidence, beyond all reasonable doubt, that the defendant, Beverly Johnson, shot and killed Jared Jordan with a pistol, and not in necessary self-defense, they should find the defendant guilty as charged. ’ ’ “2.

<p>Feom the circuit court, first district of Hinds county.</p> <p>Hon. Robert Powell, Judge.</p> <p>The appellant and one Baxter were jointly indicted for unlawfully selling whisky; the evidence was confined to a sale made by McCracken, as agent of defendants, to one Roach.</p> <p>The first instruction for the state was in these words, viz.: “ 1. The court instructs the jury that on a trial of two or more persons jointly indicted, the jury may render a verdict of guilty or not guilty as to one of the defendants, and as to the other they may disagree, and by the court be discharged, without a verdict as to all, should they be unable to agree as to all.”</p> <p>The first instruction for the defense was as follows, to wit:</p> <p>“1. The indictment in this case is a joint indictment, and cannot be sustained unless there be a sale by a joint agent of Davis and Baxter; and, in order to convict defendants, it must be shown to the satisfaction of the jury beyond any reasonable doubt, (1) that a sale was made of the whisky; (2) that this sale was made to Roach; (3) that it was made by John McCracken; and (4) that McCracken, at the very time he made the sale to Roach, if he did make such sale, was the agent of Davis and Baxter.”</p> <p>The verdict of the jury found appellant guilty; the jury, being unable to agree as to Baxter, were discharged, and a second trial directed as to him. A judgment and sentence was entered upon the verdict against appellant, from which he appealed to the supreme court.</p> <p>The first instruction given at the instance of the state is in direct and irreconcilable conflict with the first instruction granted at the instance of the defendant, and in reference to the very vital spot of the case. The first instruction for the state tells the jury that on this trial they may render a verdict of guilty or not guilty as to one of the defendants, and as to the other they may disagree, and, by the court, be discharged without a verdict, should they be unable to agree as to all. So when the court comes to consider that this is a joint offense charged, and when it comes to consider that every part of the evidence in the case submitted on the part of the state went to show joint liability, it will see the gravity of the error in giving the first charge asked by the state, and its great prejudice to the defendant. The mere fact of the conflict with the first charge for the defense should reverse the case, where the evidence is so conflicting. Miss. G. P. P. Go. v. Miller, 40 Miss., 45; 8o. P. P. Go. v. Kenckñcks, 40 Miss., 374; Herndon v. Henderson, 41 Miss., 584; Horses. Fultz, 13 Smed. & M., 39 (Miss.); Chapman v. Gopeland, 55 Miss., 476; Ounni/ngham v. State, 56 Miss., 269; Tyler v. State, 69 Miss., 395; Hudson v. State, 73 Miss., 784; Kimbrough v. Pagsdale, 69 Miss., 677. Tt left the jury without any guide.</p> <p>The first charge for the defendant is clearly right. As a joint sale is charged, a joint sale had to be proved. McCracken, who made the sale, was or was not the agent of both defendants. We insist that it is inescapable, and that this case should be reversed because of the error of giving the first charge for the state. The two men were jointly charged with a joint offense, and the evidence was directed to the fact of its being a joint offense, and the court will note the fact that it is impossible, under the proof, that one should be guilty and the other innocent, -and, therefore, under the evidence, in the case as presented by the state, directed at both, they had the right to demand that the joint charge should be believed by the jury before they could convict. It would be as well to hold that, where two are indicted for adultery, one might be acquitted and the other convicted, as to hold that, where a joint sale is charged, there can be a conviction of one and an acquittal or mistrial as to the other. This question is well considered in Black on Intoxicating Liquors, sec. 502, and the authorities there cited, to which we invite the special attention of the court.</p> <p>The appellant claims that in this case they could not convict one without the other; certainly this is not such an offense under the law that both have to stand or fall together. This is not a case of unlawful cohabitation, nor is it a case of conspiracy. The court will also bear in mind, in the consideration of this case, they are dealing with a misdemeanor, and not a felony.</p>

PROM the chancery court of Grenada county. Hon. B. T. Kimbrough, Chancellor. The nature of the case is sufficiently stated in the opinion of the court. 1. As to the position that daily wages are not taxable property in Mississippi we lay down these propositions: (a) Wages are in the nature of incomes, and are not property in the sense in which this term is used in our tax laws.

FROM the circuit court of Harrison county. Hon. H. S. Terral, Judge. The chancery case referred to in the opinion is reported: Hart v. Bloomfield, 66 Miss., 100. Bloomfield sold the land to appellee, Picard, after the decision in that case, and thereupon Picard sued Mrs. Hart in this, an action of ejectment for said land.

Feom the circuit court of Harrison county. Hon. H. S. Terral, Judge. The facts are sufficiently stated in the opinion of the court. 1. The first assignment of error is predicated of the action of the court below in striking Miss Watt’s plea in abatement from the files. She never was served with process in the justice’s court, and the judgment there rendered against her was utterly void. The justice of the peace never acquired jurisdiction of her person.

<p>Peom the circuit court of Montgomery county.</p> <p>Hon. W. F. Stevens, Judge.</p> <p>This was a suit .by appellee, Adair, against the appellant, Coleman, as administrator of the estate of John H. Kent, deceased. The declaration contained a count upon a note for |1,000, executed by the intestate, Kent, and also a count seeking a recovery of a like sum of money averred to have been lent by appellee to the intestate, at the date of the note, and an implied promise to repay the same. The pleas to the count on the note were non ansiomjosit, non eat factum and want of consideration. To the demand for money lent, the defense was a general traverse of the facts averred in the declaration. The evidence showed that Kent, the intestate, at the date of the note was an old and infirm man, and that he died in eleven days thereafter. There was evidence to the effect that Kent, who was sick the day before the date of the note and on the day of its date, never left the dwelling house of his son-in-law (appellant) after the day on Which the note is dated until his death, and the appellant, who took immediate control of his effects, never found among them any money save thirty dollars, and never could find or account for the $1,000 for which it was claimed the note was executed, and which appellee claimed to have loaned him on the day the note was executed. Several witnesses, experts in handwriting, testified, and most of them gave evidence to the effect that the signature to the note was not in Kent’s handwriting. A number of signatures of Kent were introduced in evidence, which were proved or admitted to be genuine.</p> <p>The third, fifth and sixth instructions for the plaintiff below (appellee) commented on by the supreme court, were as follows, viz.:</p> <p>“ 3. Although it may appear, from the evidence, that the defendant has been unable to account for the $1,000 sued for in this action, or to show what disposition John H. Kent, the deceased, made of the same, it does not follow, from this fact, that the said Kent did not get the money from the plaintiff, and if they believe, from the evidence, that said Kent did get the money from plaintiff and execute the note sued on for same, they will find for plaintiff. ’ ’</p> <p>“ 5. The court instructs the jury that, while the opinion of an expert is competent to go to the jury on an issue involving the genuineness of a written instrument, yet such evidence is intrinsically weak, and ought to be received and weighed by the jury with great caution; and they should give it such weight only as they may think it is justly entitled to receive in view of all the evidence in the case. ’ ’</p> <p>“6. The court instructs the jury that they are authorized to compare the handwriting of John H. Kent, deceased, with any of the checks and other papers which have been introduced and proven as signed by deceased with the signature to the note here sued on, and to determine for themselves, from comparison, whether the signature to the note here sued on is similar to the signature to the checks and other papers which are proven to be genuine, and judge for themselves whether the signature to the note is genuine or not; and this is true, although an expert has testified that the signature to the note is not exactly like the signature to the checks and other papers. ’ ’</p> <p>The third instruction for the plaintiff below is erroneous in assuming that the $1,000 sued for was a genuine, and not a fictitious, sum of money. It is also vicious in that it may have led the jury to believe that defendant in court below was under obligation to account for the disposition of the money. It leaves the implication that Kent’s administrator was under obligation to account for the $1,000.'</p> <p>Instruction No. 5 for plaintiff below is clearly erroneous in several particulars. In the first place, it is upon the weight of evidence, and is directly forbidden by § 732, code 1892. Railway Gó. v. Whitehead; 71 Miss., 451; Thompson v. State, 73 Miss., 584, 587; Underhill on Evidence,'sec. 190.</p> <p>The sixth instruction for plaintiff below is erroneous. It is an appeal to the prejudices of the jury, and has a tendency to mislead them. The similarity of the signature in dispute to genuine signatures may well be the result of design if there was a forgery.</p> <p>We do not understand that a court is precluded from advising the jury about different classes of .evidence, nor of the character of such classes. So doing is not instructing on the weight of evidence. There is primary and secondary evidence, direct and presumptive evidence, positive and hearsay evidence, and other kinds or classes. The court may instruct about these different classes, the character which each has under the law, but cannot instruct on the weight of evidence as compared with other evidence of its class. The instructions complained of are not on the weight of evidence.</p> <p>The fifth instruction merely told the jury that they were authorized to compare the genuine signatures with the disputed one, and that the fact that experts had testified did not preclude them from making the comparisons. This was correct. Gar-vin v. State, 52 Miss., 209; Oheatham v. State, 67 Miss., 345.</p>

From the chancery court, second district, of Coahoma county. Hon. A. H. Longino, Chancellor. The facts arc stated in the opinion of the court. Held: without exceptions to the rule, that a tenant cannot acquire a tax title in derogation of the landlord’s title. Gaskins v. Blake, 27 Miss., 675; Alien v. Poole, 54 lb., 323; Robinson v. Lewis, 68 lb., 69; Jones v. Merrill, 69 lb., 747; Clark y. Rainey, 72 lb., 151; Lyebrook v. Hall, 73 lb., 509; Black on Tax Titles, sec. 145.

FROM the chancery court of Tunica county. HoN. A. H. LoNGINO, Chancellor. The case is sufficiently stated in the opinion of the court. 1. Notwithstanding the denials of defendant’s answer that a sale was necessary, the court proceeded to decree a sale of the lands, upon some testimony that does not appear in the record.

Prom the circuit court of Simpson county. HoN. A. G.' Mayers, Judge. The opinion sufficiently states the nature of the evidence. The instructions referred to therein are as follows: “3. The law will not permit a man to defend his life from a danger he has himself unlawfully provoked or invited; and.to purposely kill in defense of life from a danger he has so invited or provoked, is murder, and not manslaughter. ‘ ‘ 4.

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

From the circuit court, first district, of Hinds county. HoN. Robert Powell, Judge. The first case between these parties is reported in 72 Miss., 1013. After the decision of that case, this one was begun. The judgment in the first suit was pleaded by appellant, defendant below, in bar of this action, and thus arose the question decided by the court.

From the chancery court of Quitman county. Hon. A. H. Longino, Chancellor. The bill was filed by Vance, appellee, to confirm a tax title to five hundred and sixty acres of land, in section thirteen, township twenty-seven, range one, east, in Quitman county.

Feom the circuit court of Madison county. Hon. Robert Powell, Judge. This case involved alone the constitutional question passed upon by the court. Its decision was urged by both parties, in the case of Adams v. Capital State Bank, 74 Miss., 307? but the court then declined to decido it. The court deciding the present case was composed of Woods, chief justice; Hon. Jeff. Truly and Hon. W. Gr.

Fkom the circuit court of Lincoln county. Hon. Robert Powell, Judge. Held: § 2391, code of 1892, authorizing views by juries in the absence of the accused, to be unconstitutional.

Feom the circuit court of Noxubee county. Hon. G. B. Huddleston, Judge. A writ of attachment was issued, at the suit of the appellants, by a justice of the peace of Noxubee county, directed to the sheriff or any constable of Kemper county. It was executed by one O’Brien, a private person, in Kemper county, under a special appointment as deputy constable, fnade by the magistrate who issued the writ. On motion of defendant, the writ was quashed and the proceeding dismissed.

Feom the chancery court of Lincoln county. Hon. H. C. Conn, Chancellor. The municipal authorities of Boguechitto, the village being a separate school district, levied a tax exceeding three mills on the dollar for the purposes expressed in the first clause of § 4014, code 1892. This was done without the consent of a majority of the taxpayers of the municipality. The collection of the tax was enjoined by appellees.

FROM the circuit court of Tallahatchie county. Hon. F. A. Montgomery, Judge. The opinion states the case. We do not deny that the charges made by appellee were reasonable, but we submit that the board of supervisors was without power to make the allowance under § 3158, code 1892. Under § 3158, code 1892, it is discretionary with the board of supervisors whether or not they allow a claim like the one in controversy.

From the circuit court of Clarke county. Hon. E. A. White, Special Judge. This case was once before in the supreme court, and is reported in 74 Miss., 520. It was there on appeal from a judgment sustaining a demurrer to plaintiff’s declaration, and dismissing the suit.

PROM the circuit court of Harrison county. Hon. T. A. Wood, Judge. Smith Bros. & Co. sued J. A. Bulandi for §91.84. Defendant had §1,042 deposited in the People’s Bank of Biloxi, but, after commencement of suit, he gave his wife, Marie Bu-landi, a check on the bank for §1,000, which she deposited at the bank to her credit.

From the circuit court of Madison county. Hon. Bobert Powell, Judge. Held: in the trial of local option cases, as a court of limited and special jurisdiction. But suppose it was, must not every court try the question of jurisdiction if the exercise thereof depends upon the existence of a fact ? It is certain that the existence of a fact was challenged, and that the court tried the existence of the fact.

Feom the circuit court of Harrison county. Hon. T. A. Wood, Judge. Ejectment by Joseph Ladnier against Clozelle Ladnier for the northwest quarter of the northeast quarter and the northeast quarter of the northwest quarter of section 1, in township 6, range 13, in Harrison county, Mississippi.

<p>FROM the chancery court of the first district of Coahoma county.</p> <p>Hon. A. H. Longino, Chancellor.</p> <p>The opinion states/the case.</p> <p>‘ ‘ The executor or administrator, and not the heir, has the right to the possession of the bills and notes of the deceased, and it is his duty to present and demand payment of them, to give notice in case of their dishonor, and make protest; in short, to do in respect to them what would have been the duty of the decedent to do had he lived; and if a bill or note be assigned to a dead man whose death is not known, it becomes the property of his personal representatives in like manner as if he had died after the transfer. So likewise if the transfer were made in good faith with knowledge of his death, as it could be made with no other intention than to place the instrument among his assets.” 1 Daniel on Negotiable Instruments, sec. 264, and notes.</p> <p>The second and only other objection advanced by opposing counsel to the validity of the sale by Yerger, sheriff, under the last mentioned mortgage, is to this effect: That the power of sale conferred in that instrument was personal to the beneficiary and to him alone, the legal title to the property conveyed being in the beneficiary and not in the acting sheriff of Coahoma county. It is thereupon gravely asserted that as the sheriff was not invested with the legal title to the lands conveyed, he could only act in the capacity of a mere auctioneer, without any right or power whatever in him to execute deeds to any person who might appear and bid for and become the purchaser of the property thus sold by him. We as gravely maintain that this proposition is radically unsound and unmaintainable. It is not justified by the language of the instrument itself, and when we come to construe this instrument as a whole we cannot escape the conclusion that the intention of the parties at the time of its execution was to provide a safe and very inexpensive method of foreclosing the instrument in the event of the death of the beneficiary. After having criticized the language of the instrument, and subjected it to the most hypercritical test, we go further and say, that according to the very strict letter and language of said instrument, the sale made.by Yerger, as sheriff, was valid and binding in every particular, and that he had the unquestioned right not only to sell, but to convey the property sold to the purchaser thereof. After providing for the publication, by written or printed notice of the sale, the instrument proceeds to say: “Upon said sale said party of the second part (his successor or successors in trust, as the case may be), in fee simple of the property sold, shall execute a deed or deeds to the purchaser or purchasers thereof, his successor or sucessors. ” To 'whom does this language apply ? Beyond question, and to accurately and properly answer this query, we must look to other parts of the instrument, from which we find, as above stated, that “in case of the absence, death, etc., of the other party,” the acting sheriff of Coahoma county was fully authorized to proceed to sell the property, and do all other things which might or could have been done by the beneficiary, had he not have “ shuffled off this mortal' coil.” The record here not only shows, but it is conceded by all parties, that the beneficiary, Dickerson, died some time before the acting sheriff of Coahoma county was requested to perform the duties devolved upon him by the mortgage. Again, in the event of the sale, what was to be done by the beneficiary or his successor or successors in trust, and what was the intention of the grantors in this instrument as to the duty of the beneficiary or his successor, in the event a sale of said property became necessary? Transpose the language and see how it would read: “Upon such sale, said party of the second part, his successor or successors in trust, as the case might be, shall execute a deed in fee simple of the property sold, to the purchaser thereof. ’ ’ If this be not the true and correct construction of the language used, what disposition are we to make of that portion of the sentence which reads “in fee simple of the property sold shall execute,” etc.?</p> <p>Opposing counsel warp this language in every conceivable fashion, but, after all, it occurs to us that the language used is simple, nontechnical and easily and readily understood. We say, furthermore, with all due deference to learned counsel and the learned chancellor who decided this case, that, despite the act, no legal title to the property embraced in the mortgage under consideration was vested in the acting sheriff of Coahoma county, yet he was fully authorized and empowered, under the terms and provisions of that mortgage, not only to sell the property cpvered thereby, but to execute all deeds of conveyance necessary to convey a good, perfect and indefeasible title in fee in the purchasers of the same.</p> <p>In this connection it is well to note the absence of any testimony to the effect that E. M. Yerger, sheriff, who sold and conveyed the property in controversy, under the power vested in him under the mortgage of March 2, 1882, was not the acting sheriff of Coahoma county, when said mortgage was originally executed. “A power, technically speaking, is not an estate, but is a mere authority, enabling a person, through the medium of the statute of uses, to dispose of an interest in real property vested either in himself or in any other person.” Burleys. Gluf\ 52 N. H., 267. Bouvier defines a power in this case to be ‘ ‘ an authority enabling a person, through the medium of the statute of uses, to dispose of an interest in lands, vested either in himself or in any other person.” 2 Bouvier’s Institutes, 835. See, also, 26 Am. & Eng. Ene. L. (1st ed.), 871, and notes.</p> <p>•Where a trust deed provides that in case of the absence, inability or refusal of the trustee, the sheriff of the county may make the sale, and a sale by the sheriff in accordance with the terms of the deed, and upon the happening of the contingency mentioned, is a sale under the power, and divests the grantor of his title. McKnight v. Wlmmer, 36 Mo., 132. It is, however, wholly unnecessary to go beyond the limits of our own state to ascertain what rule should be adopted for the construction of the power created by the instrument now being considered. See Moore v. Lnchey, 53 Miss., 85. "Courts of equity will regard the substance and not mere form of agreements and other instruments, and will give the precise effect the parties intended in furtherance of that agreement.” 1 Story’s Eq. Juris., sec. 791. Perkins v. Gibson, 51 Miss., 699, 704, 705, cited with approval in case of Moore v. Lackey.</p> <p>To avoid the force and effect of this latest enunciation from the supreme court of Mississippi, opposing counsel say that Judge tíimrall was unwarranted in undertaking to decide the questions which we may say he decided squarely in our favor; that the language used by him is dicta, mere argument, and nob decision. However this may be, we insist that in this day of enlightened equity jurisprudence, Judge Simrall correctly announced the rules as above stated. And even though it be true, as urged, that it was not in the Moore-Lackey case necessary for the court to have gone into that question, yet, having done so, it is entitled to great weight, and should be influential in determining the rights of the parties to this litigation, and it has stood so long unquestioned as to become a rule of property.</p> <p>The property embraced in the instrument of security was conveyed to Dickerson, £‘his legal representatives, heirs and assigns, forever. ’ ’ But it is subsequently provided that in the event the grantors should fail or refuse to pay the debt secured, or the interest, or any part thereof, when it became due and payable, that Dickerson, or, in case of his death, absence or refusal to act in anywise, that the c £ acting sheriff ’ ’ of Coahoma county should, at the request of the legal holders of the note evidencing the debt secured, proceed to sell the property conveyed, or any part thereof, prescribing the time, place and terms of sale and manner of advertisement. The instrument then provides that £ £ upon such sale said party of the second part, Dickerson, his successor or successors in trust, shall execute a deed or deeds to the purchaser or purchasers thereof, and shall receive the proceeds of said sale, out of which shall be paid, ” etc. It is to be considered, who were intended by the designation of the mortgagee’s successor or successors in trust.</p> <p>Although counsel for appellees vehemently argue the affirmative of the proposition, the mortgagee’s personal representatives could not have been intended, though it is true, perhaps, as a general rule, that the personal representatives of a mortgagee, in a mortgage with a power of sale, has the right to execute the power. But, in the instrument under consideration, the personal representatives of the mortgagee are expressly excluded from the exercise of this power, a circumstance which, strange as it may seem, is entirely overlooked by the counsel for appellees in their argument. For, by the letter of the instrument itself, in the case of the death of the grantee and mortgagee in the deed, the "acting sheriff ’ ’ of Coahoma county was to execute the power of sale, at the request of the legal holders of the note evidencing the indebtedness secured.</p> <p>This can by no possibility be the correct construction of this phrase, and for the following reason: According to the terms of the security, the sale thereunder was to be made by the £ £ acting-sheriff,” upon certain conditions, at the request of the legal holders of the note secured. As a matter of course, it was not incumbent upon the mortgagee, nor any legal holder of the note secured, to exercise, or cause to be exercised, the power of sale as soon as the condition of payment was broken. And where the note had passed to another, and one of the conditions upon which the sheriff might sell had occurred, manifestly, any time thereafter (within the period of limitation, of course), such holder might, according to the terms of the instrument, request the acting sheriff to proceed to execute the power of sale. In other words, two conditions must have concurred to authorize the sheriff to execute the power of sale: (1) Either the death, absence or refusal to act of the mortgagee; and '(2) the request to sell by the legal holder of the notes. Therefore, ■ the phrase, £ ‘ acting sheriff, ’ ’ was obviously intended to designate the sheriff acting when these two conditions concurred, as none other could act. Therefore, after the first condition had happened, the phrase, £ £ acting sheriff, ’ ’ would apply, and would only apply to the sheriff acting when the necessary concurrence took place — namely, when the request by the legal holder of the note was made.</p> <p>This is the only rational construction of the provisions of the instrument under consideration, and that, therefore, the clause “said party of the second part, his successor or successors in trust, as the case may be,” can only refer to the mortgagee and the sheriff, or successive sheriffs in office after the trust devolved, by the happening of either of the conditions upon the incumbent of the sheriff’s office. There can be no doubt but that the sheriff, as successor in trust of the mortgagee in the deed under consideration, had the right to convey by express provision of the deed, as well as to sell. Counsel for appellees seek to concede his right to sell, but deny his right to convey. Such a power to sell, in a case of this sort, carries with it the right to convey. Ilunber v. TVooldert, 55 Tex., 433; Williams v. Oley, 8 Hum. (Tenn.), 563; Fogarty v. Sawyer, 17 Cal., 599; Yalentine v. Piper, 22 Pick. (Mass.), 433; 2 Jones on Mort., sec. 1889; Lindley v. O'Beilly, 50 N. J. L., 636; Lang v. Stansel (Ala.), 17 So. Rep., 519.</p> <p>Before the acting sheriff named in this deed could exercise any power of sale, he would have to be first requested to do so by the legal holder of the note. It becomes, then, important to inquire who was the “legal holder” in the intendment of the words of the deed. By no fair nor legal construction of this deed can those words be held to mean the legal representatives of the deceased mortgagee. Technically, those words import the one who owns the note. But whenever it is apparent that a grantor has used a word to express an idea different from its technical signification, the court will construe it accordingly. Warneoh v. Limbra, 71 Ills., 91. As already adverted to, the contingencies in this case which gave the sheriff the power to sell upon request of the legal holder of the notes, were absence of the mortgagee, his death or refusal to act. Counsel surely will admit the power of the mortgagee to both sell and convey, and that by his absence or refusal to act while he was the holder of the note, he could not, by requesting the sheriff, give him the power to sell and convey. It would be absurd to say that the mortgagee, with power to sell, would refuse to do so to protect his own interest. Much more absurd would it be to say that he absented himself so that sale could not be made, and then requested the sheriff to sell. The words, “legal holder of the note,” clearly meant, when construed with the other words of the deed, the assignees of the note. It will not do to say that it meant assignee if transferred during the life of the mortgagee, but after his death it meant the technical legal holder, whether legal representatives or assigns. This is a too narrow and refined distinction, not warranted by any rule of construction of deeds or wills. We think, then, that the technical words, ‘ ‘ legal holder, ’ ’ as used in this deed, imported only the one to whom the note might be assigned. Jones, in his second volume on mortgages, section 1787, says that an assignee of a note secured by a mortgage with a power of sale, unless power is expressly given to him by the instrument, does not acquire the power of sale by his purchase. However that may be, we have no interest in discussing that question, as it does not arise in the case at, bar. If the assignee had no such power, then there was a good reason for the provisions in this deed giving the power of sale to the sheriff by request of the legal holders of the note, upon the refusal, etc., of the mortgagee to act. This was to protect the legal holder against the oppression of the mortgagee and his legal representatives. We advance the proposition of law, which counsel cannot controvert, that if the words used in this deed, to wit, ‘ ‘ legal holder of the note,” must be construed as assignee of the note, then a sale made by the sheriff, upon the request of the executors of the mortgagee, is null and void, and conveyed no title. Boone v. Miller, 86 Texas, 74.</p> <p>We advance the further proposition of law, that, under the facts in this case, the acting sheriff of Coahoma county, whether Alcorn or Yerger, was not authorized under this deed to make a conveyance of the land sold thereunder. For two reasons is this true, viz.: (1) Because the legal title was not vested in him by the grantors, but was conveyed expressly to the mortgagee, his legal representatives, heirs, and assigns; (2) because the power to execute the deed was expressly conferred upon the mortgagee, “his successor or successors intrust, as the case may be, in fee simple of the property sold. ’ ’</p> <p>Doubtless, able counsel on the other side will contend, that “his successor or successors in trust” was intended by the grantors to mean the sheriff acting when the request was made by the legal holder of the note. To concede for a moment that those words mean the sheriff, Alcorn, acting at the time the condition of the mortgage was broken, and his successor in office, Yerger, would be to give their case away; for we contend that Alcorn was meant as the acting sheriff, and that, as no provision was made for the sale by his successor, Yerger, a sale by him was void. Counsel are here met with a dilemma. If the successor in trust means that the mortgagee is called trustee, and Yerger is his successor in trust, then they are confronted with the words following successor, viz., “successors in trust, ’ ’ in the plural number. If they take the other-horn of the dilemma, and say successor means Alcorn, and successors means Alcorn’s successors in office, then they have given their case away, as we have shown. We have no doubt but that defendant’s counsel, in their despair, will move the court to strike out from the mortgage the words "or successors ’ ’ as surplusage. The acting sheriff may make the sale whenever requested by the holder of the note, the mortgagee, his successor or successors in trust, as the case may be, in fee simple of the property sold, shall convey and shall receive the proceeds of the sale. Counsel would, by means of striking out certain words, and by intendment,, read into this power of sale, trustees not mentioned, and then breathe into them the legal title, vested under the deed only in the mortgagee, his legal representatives, heirs, and assigns. But counsel forget the principle laid down in our law books, that ‘ ‘ nothing can be assumed or presumed in construing a-grant of this kind, and the very letter thereof must be followed.” A matter,of personal confidence is not to be extended beyond the express words and clear intention of the grantor. 1 Lewin on Trusts, 604.</p> <p>Is it not more reasonable, in trying to get at the intention of the grantors in using the words, ‘ ‘ the party of the second part, his successor or successors in mist, as the case may be, in fee simple of the property sold,” to candidly admit that the legal representatives of the deceased mortgagee are meant? That is the only proper construction of the words borne out by the context of the instrument. Our court has held that while a mortgagee is not, and cannot, technically speaking, be called a trustee, yet he is a trustee in the sense that he holds the surplus money at a sale made by him as trustee for the grantors. In that sense, his legal representatives, who hold legal title, are his successors in trust. If only one. legal representative, he is the successor in trust; if two or more, they are his “ successors in trust, as the case may be.” Technically, to the constitution of every express trust, there are essentially three elements, viz.: a trustee, an estate devised to him, and a beneficiary. The trustee and the beneficiary must be distinct personalities, or otherwise there could be no trust. Greene v. Greene {N. Y.), 21 Am. St. Rep., 745.</p> <p>The mortgagee who has the power of sale is in no sense a trustee, as far as his security is concerned. He has the legal title vested in him for the security of his debt. When a power of sale is also given him, he is a quasi trustee, to the extent that he must faithfully and fairly execute the power, and account to the mortgagor for any surplus money arising at the sale. He is also a trustee to the extent that he is incapacitated from buying at the sale. 89 Am. Dec., 372a.</p> <p>There is no question but that the mortgage was meant in this deed when the word trust is used. “ His successors in trust,” undoubtedly means the mortgagee’s successors in carrying out the powers and trusts of this instrument. Intention is the pole star in the construction of both deeds and wills, when such construction will not violate settled rules of construction as fixed by the law. It seems to us that there can be no escape from the conclusion that “ successor or successors in trust ” meant the legal representatives of the mortgagee, when construed in connection with the qualifying words, “in fee simple of the property sold. ’ ’ The words of this mortgage are, ‘ ‘ his successor or successors in trust in fee simple of the property sold. ’ ’ Who else could be the successors in fee simple of the property sold, if not the legal representatives, heirs or assigns ? They alone were seized in fee simple of the property sold. The "acting-sheriff ” had no title. We presume counsel will deny the correctness o'f this interpretation of the meaning of the grantors, and will contend that they intended to write it thus: ‘ ‘ Successor or successors in trust, as the case may be, shall execute and deliver a deed in fee simple of the property sold.” But this is not the way it is written, and there is no rule of construction justifying such transposition. Perhaps if these words had no meaning, unless so transposed, then this might be the proper construction, but, taken in connection with the fact that the legal representatives had the legal title, and that the words have a clearly defined meaning as written, no transposition can be admissible. They also succeed to the rights and powers of the moi’tgagee in his death, and are sometimes called successors. They are the heirs at law.</p> <p>Mr. Worcester defines the word successor to be one who succeeds or follows in the’place or character of another, correlative to predecessor. Predecessor is defined: one who, dying first, leaves another in his place, an ancestor. Bouvier defines successor as ‘ ‘ one who follows or comes into the place of another. ’ ’</p> <p>Counsel may combat the proposition of law that where a mortgage contains a power of sale, the grant of the power is irrevocable, and does not cease on the death of the mortgagee, but survives to his legal representatives. 46 Miss., 28, 29. The legal representative is the only person to enforce the foreclosure. The distinction in the cases where this power survives and where it does not, is that between a naked or collateral power and one coupled with an interest. If the position be taken by defendant’s counsel that “successor” refers to the sheriff who was acting when the request was made by the holders of the note, then what is the meaning of the words ‘ ‘ or successors ? ’ ’ There could not be, at one and the same time, two acting sheriffs. Besides, only one is given the power of sale. Every word in this instrument must be given a meaning, if possible, and none can be stricken out as surplusage. If successor in trust refers to the. acting sheriff, then the parties intended by it Alcorn, acting at the time the deed was made and condition broken, and “successors” necessarily refers to his successors in office. This argument leads, inevitably to this conclusion, that the power of sale was given to Alcorn, with the power to convey, if he sold; but no. power to sell is given to his successors, who are invested with the power to convey. This is T'edaetio ad absurdum.</p>

From the circuit court of Wilkinson county. Hon. W. P. Cassidy, Judge. All facts involved in the controlling question appear in the opinion of the court. In the court below, counsel for appellee cited authorities holding that purchasers under judgment at execution sale were not entitled to growing crops. There is a distinction between such cases and the one here. The judgment is only a lien upon the land, but a mortgage or deed of trust is an estate in the land.

From the chancery court of Yazoo county. Hon. H. C. Conn, Chancellor. Held: “The proviso,to section 24 of the act of June 13, 1822, Hutch, code, p. 609, relates exclusively to conveyances or devises of real estate, and cannot, therefore, affect the application of the rule to a conveyance or devise of slaves. ’ ’ In that case Gerard Brandon, by his last will, bequeathed all his real and personal estate of…

FROM the chancery court of Lowndes county. Hon. A. M. Byrd, Chancellor. The facts are stated in the opinion of the court. The policy of the government was established in 1785, when Virginia ceded the territory northwest of the Ohio river to dedicate -a part of the public lands for the benefit of schools in every township.

<p>Feom the circuit court of Tishomingo county.</p> <p>Hon. E. O. Sykes, Judge.</p> <p>Burg Joslin, appellant, was indicted for murder, convicted of manslaughter, and appealed to the supreme court. The state prosecuted a cross appeal. The facts are stated in the opinion of the court.</p> <p>If under seven years old, a person is doli incapax; between seven and fourteen years of age he is prima facie doli incapa/x. In such case, the trial for crime of onprima facie doli incapax, the evidence must show, to warrant conviction, beyond a reasonable doubt, that the accused was at the time capable of committing the crime, and had a guilty knowledge of the crime charged, 4 Blackstone’s Com., 24; 4 Am. & Eng. Ene. L., p. 684, note 3, and authorities there cited.</p> <p>The first instruction given for the state was erroneous. There is no room for implied malice in this case. It will not do to say that the error of the instruction was cured by the other instructions. The other instructions do no more than contradict the first one, and left the jury to select between irreconcilable directions. The sixth charge given for the state is also erroneous; while it follows the language of the statute (§1158 code 1892), it certainly has no application to a case like the one at bar.</p> <p>The instructions complained of, all announce correct principles of law. While they do not embody the idea that the state should prove the appellant doll capax, yet they must be read in conjunction with' the other instructions, which give appellant the full advantage of the doctrine. Certainly instructions must be considered as a whole; the state’s instructions excluding defendant’s from consideration, are not only correct but fair and just to the accused. The evidence in this case, which justified the jury in finding that appellant was doli capax, is found in the incidents of the tragedy; the declarations and conduct of the accused just after; in short, in all the surrounding circumstances. This character of evidence is better than the opinion of witnesses. This court, we think, should affirm on the direct appeal, but on the cross appeal of the state, we ask for a judgment declaring that the dying declaration should have been received in evidence. The declarant stated that he expected to die — true, he did not say when — but his condition at the time, coupled with the statement, were conjointly sufficient to show that the deceased was, at the time he made the declaration, under a sense of impending dissolution.</p>

From the circuit court of Noxubee county. Hon. G. B. Huddleston, Judge. This was a prosecution of appellant for the unlawful sale of intoxicating, liquors, and was begun by affidavit made before the mayor of Shuqualak, acting as ex officio a justice of the peace, who, upon conviction of the accused, sentenced him to imprisonment for ninety days and the payment of a fine of three hundred dollars.

Feom the chancery court of Pontotoc county. Hon. Baxtee McFarland, Chancellor. Held: and inferentially all the grounds of the demurrer. The court below ought to have allowed the amendment, as asked.

From the circuit court, first district, of Hinds county. Hon. Robert Powell, Judge. The facts are stated in the opinion of the court. Section 1761 of the code does not, and in the nature of things cannot, have reference to corporations.

Feom the chancery court of Warren county. Hon. Claude Pintaed, Chancellor. The opinion states the case. 1. We invoke the rule of marshaling securities. 1 Story’s Eq., secs. 558, 633; 14 Am. & Eng. Ene. L., 685, note 4; Gheeseborough v. Millard, 1 John. Ch., 409, 412; Kausler v. Ford, 47 Miss., 289, 301. 2. In most of the states marshaling may take place where homestead land is involved.

From the circuit court of Issaquena county. Hon. W. K. McLaurin, Judge. Held: that the holder of the scrip refusing to comply with these conditions, shall not have any of the benefits conferred by the act.

From the chancery court of Harrison county. Hon. T. A. Wood, Chancellor. This was a proceeding in the chancery court to probate the nuncupative will of Mrs. Louisa J. Bidwell, made in the city of New Ozdeans, Louisiana, in 1890, before a notary public, under the peculiar law of that state. Mrs. Bidwell died at Pass Christian, Miss., on May 16, 1897; and on May 21, 1897, Dr. Greo.

Beom the circuit court of Monroe county. Hon. E. O. Sykes, Judge.' John Brandon was indicted for the murder of his son, George Brandon. On the trial of the case, the court below, acting under code 1892, § 1384, caused the arrest, in the presence of the jury, of Lucy Brandon, a witness for the state, for palpable perjury, committed on the hearing.

From the chancery court of Monroe county. Hon. Baxter McFarland, Chancellor. The opinion states the controlling facts in the case. In the case of Bowers v. Chambers, 53 Miss., 267, it was held that the description, £ ‘ 14 acres off the N. E. corner, E. S. E. -j, section 20,” etc., was sufficiently certain. It would have been just as certain and definite if the description had said: “N. E. corner, E. -J, S. E. section 20,” etc., containing fourteen acres.

From the circuit court of Marshall county. Hon. Z. M. Stephens, Judge. This was an action against the railroad company for one hundred dollars damages for a mule killed, and was brought by the appellant, Scott, for the use of one Hargus.

From the chancery court of Lincoln county. Hon. H. C. Conn, Chancellor. The land in controversy belonged to the United States until 1890. It was, however, assessed to an unknown owner on the assessment roll in 1887, and was sold for taxes in 1888, and Cassidy, appellee, became the purchaser.

From the circuit court of Coahoma county. Hoist. F. A. Montgomery, Judge. The opinion states the case. Under our law, anything containing alcohol and that is sold as a beverage, is condemned, and such sale is illegal. We think this case falls within the principles laid down in Eeyfelt v. State, 73 Miss., 415; Bertrand v. State, 73 Miss., 55. Under the very terms of our statute and our own decisions, the sale in this case is a violation of law.

From the chancery court of Amite county. Hon. Claude Pintard, Chancellor. The opinion states the case. Held: etc. In Hague v. Hague, supra, the conveyance was £ £ to Sarah and her children, ’ ’ and not to Sarah for life, with remainder, etc. And in the line of cases like Hubbarcl v. Reiser, 44 Miss., 705; Busby v. Rhodes, 58 Miss., 237; Gam,-non v. Barry, 59 Miss., 289; and Hawkins v. Hawkins, 72 Miss., 749, in our own state, in which…

Feom the circuit court of Monroe county. Hon. E. O. Sykes, Judge. The opinion states the case. The promissory note sued is not negotiable by the law merchant, the amount being neither certain nor payable absolutely. Story’s Prom. Notes, sec. 2023; 1 Parsons on Notes and Bills, pp. 37, 42; Tiedeman on Com. Paper, secs. 25, 28; Mathews y. Pedwitie, 23 Miss., 233; Palmer v. Webb, 6 Gray (Mass.), 340; Pitch v. Stamps, 6 How.

From the chancery court of Harrison county. HoN. N. C. Hill, Chancellor.

From the circuit court of Monroe county. Hon. Newnan Catce, Special J. The facts are stated in the opinion. For a previous report of the case see French v. Ganton, Aberdeen dc Nashville Railroad Go., 74 Miss., 542. It was proved that the land in controversy was in the stock law district of Monroe county, and that the railroad company owned the fee to its one hundred foot strip thereof, improperly called its right of way. Laws 1882, p. 237.

<p>From the chancery court of Itawamba county.</p> <p>Hok. Baxter McFarlaND, Chancellor.</p> <p>This was a proceeding for the partition of the lands belonging to the estate of Martha King, and for a recovery in perso-nam against the defendants, J. M. Weaver and W. P. Weaver (appellants here), for moneys and notes alleged to have been taken possession of by said J. M. and W. P. Weaver, of the estate of said Martha King, and used for their own benefit. There was an original bill and answer by the defendants, J. M. and-W. P. Weaver, and then an amended bill. The allegation of the original bill, in relation to the moneys and the notes of the decedent, is substantially that the said J. M. and W. P. Weaver took possession 'of said money and the said notes, and now have them, and they are asked to bring them into court for division; and at the close of the bill there is a prayer for general relief. In the answer of J. M. and W. P. Weaver, they admit getting $105 of the money of the estate of Mrs. King, and the notes of Madox for $69.80, and that of Henderson for $45, credited with $20. But they claim to have taken possession thereof at the request of Mrs. Waldrop, one of the heirs, and in their answer they ask that the amounts charged against them in the bill be set aside, and to substitute therefor the note of T. J. Madox for $69.80, and of E. F. Umphries for $10, and of Doc Henderson for $25, and cash to the amount of $105, and pray that the note of J. M. Weaver be excluded. In the answer they admit that J. M. Weaver tore his name off the note he had signed, but he was willing to restore it, and that he took the money to loan out for Mrs. King, and was to pay her interest at ten per centum.</p> <p>In an amendment to the answer it is alleged that there are other heirs than those named in the bill, and among others is named Frank P. Allen, whose interest in the controversy had not appeared prior to date of amended answer, March 21, 1896. He was the son of a deceased sister of the intestate, Mrs. King, the descendants of whose two brothers are named in the bill as if they were the sole heirs and distributees though not so expressly declared to be. The amended bill is very much like the original; adding some other parties as heirs of Mrs. King, and saying nothing about what interest each of the complainants and defendants has in the property, but simply saying they are tenants in common. The prayer is for a division of the property, and that the defendants, J. M. and W. P. Weaver, account for the moneys and notes, as they took possession of them improperly and without authority, and for general relief. The final decree in the court below was rendered in favor of complainants, and thereby the defendants, J. M. and W. P. Weaver, were made liable for the note of J. M. Weaver, mentioned in the pleadings, and also were made liable for $69.80, with interest, and $25 and interest for notes of the estate of Martha King converted by them to their own use without lawful authority. Prom this decree the executors de son tort and Frank P. Allen appealed. The nature of the evidence is sufficiently indicated by the opinion.</p> <p>The first three assignments of error are predicated of the fact that much of the personal property which the decree charges appellants J. M. and W. P. Weaver with still belongs to the estate unadministered. Now, it is clear that these notes and accounts could not be collected without an administration, and that no decree touching them should have been made, until an administrator of the estate had been a party to the proceeding. 7 Am. & Eng. Ene. L., 402; Daniel’s Ch. PL & Pr., 3l9, and cases cited. Nor is this error cured by the fact that an executor de son tort was already before the court. Penny v. Watts, 2 Phill. Ecc. (Eng.), 149; Oreasor v. Robinson, 14 Beav. (Eng,), 589.</p> <p>J. M. and W. P. Weaver are only liable to the heirs personally for so much of these notes as they have converted to their own use, as executors de son tort. If what they did with these notes did not impair the rights of the estate to collect them, or, if either the notes or money were applied to the payment of the debts of the estate, then clearly this was a complete defense. Gay v. Lemile, 32 Miss., 310; Hardy v. Thomas, 23 Miss., 544; Hill v. Henderson, 13 Smed. & M., 688; Peeler v. Peeler, 11 So., 318. Under such circumstances the liability of an executor de son tort, to either creditor or heirs, is precisely the same as that of a rightful and regular executor. Code 1892, §1926; Hill v. Henderson, 13 Smed.'&M., 688.</p> <p>It must be remembered that the proceeding is for the recovery of the personal property for the purpose of division and distribution. Of course, in the event the property cannot be recovered, then these executors would be liable for the value of so much of it as they have appropriated to their own use or wasted. If the contention be that the estate owed no debts, except for the coffin,'which was allowed the executors, then the delivery to T. J. Madox of his note, and the mutilation by J. M. Weaver of his note, in nowise affects the liability of the debtors, or the right of the estate to collect them when an administrator is appointed.</p> <p>In the case of Madox, the delivery of the note was without consideration, and, upon proof of its loss or destruction, could be collected. In the J. M. Weaver case, a new note was executed in lieu of the one destroyed, and turned into court. The only note converted by either to his own use was-the $19, paid by Doc. Henderson for W. P. Weaver.</p> <p>These notes, then, being assets of the estate capable of being administered, the decree should have provided for the amount to be levied of these assets, if the executors have so much, but, if not, then of the defendant’s own goods. Witcher v. Wilson, 47 Miss., 663; Iiill v. Henderson, 13 Smed. & M., 688; Ilill v. Ilobeson, 2 Smed. & M., 541; Barrow v. Wade, 7 Smed. & M., 49; code 1892, § 1926.</p> <p>The estate being solvent, the executors are entitled to a credit for such debts as they may have paid off out of these assets. Gray v. Lemle, 32 Miss., 309, and cases supra. Under this principle, the evidence shows that the fourth assignment of error was well taken. It clearly appears from the evidence that T. J. Madox was asserting a claim against the estate greater than the note he owed; and that it was in compromise or settlement of this claim that W. P. Weaver delivered up his note; that Mrs. John Weaver had taken care of and nursed the testator at her own house during her last illness, and that before her death Mrs. King had requested she be paid $25 for these services; that W. P. Weaver had a medical bill against the testator for services in her last illness, and clivers other times, in amount greater than all the money he had received.</p> <p>But this decree is a joint decree against both of these executors, when J. M. Weaver had nothing at all to dó with the payment of these debts by W. P. Weaver, and W. P. Weaver had nothing to do with J. M. Weaver’s liability on his individual note to the estate. Clearly, the fifth assignment of error is well taken. 11 Am. & Eng. Ene. L., 1022; Qaultney v. Nolan, 33 Miss., 569.</p> <p>They are not only held liable "jointly and personally, but for interest on the money for one year previous to' the death of Mrs. King, during which time the old lady had carried this money around her waist, and for one year’s interest too much on the T. J. Madox note, and for ten per cent, on the Henderson note, when it only drew six per cent.</p> <p>The eighth assignment of error is raised by Frank P. Allen as well as the executors. Frank P. Allen has a one-fourth interest in the entire estate, and yet he is excluded entirely, although shown to be a party and heir in interest. Mrs. Robinson is entitled to a one-sixteenth interest in all the property, and made a complainant to the amended bill, and yet she is cut off entirely by the decree. The I. P. Weaver children are entitled to a one-third interest, and yet the decree fixes it at a one-twentieth interest. The Jno. Weaver children are entitled each to a one-thirty-second interest, and yet the decree fixes their interest at a one-twentieth. The Umphries children are each entitled to a one-sixteenth, and yet this decree fixes their interest at a one-twentieth.</p> <p>This decree is a final decree, fixing the right of all parties in this estate, and is also an entire decree. It cannot be upheld as to the personal part of it against these executors, and set aside as to the land. Qilleylan v. Ma/rtvn, 73 Miss., 695; Rule v. Broach, 58 Miss., 552. It erroneously fixes the interest of the parties in the personal decree to be the same as in the land, and, being erroneous as to one, is erroneous as to both.</p> <p>The familiar principle of law that where two or more do a wrong, either is liable for the whole damage, applies to these parties. If they had taken possession of these notes and the money, simply as heirs, and kept the same to be divided between all the heirs, it would have been all right; but the very inception of the thing was in wrong. The possession was taken at the start with the view of appropriating to their own use. This they did as far as they were able to do actually, and then we are told in the brief of counsel that because J. M. Weaver appropriated his own note to his own use, and that W. P. Weaver having applied the Doc. Henderson note to his own use, that J. M. Weaver is not responsible for that; and that although the note of T. J. Madox was surrendered to him, and counted as paid between them, and destroyed, that there has been no wrong of which we can complain. We are now to have an administrator appointed on the estate of Martha King, and go around and gather up the fragments of these notes, and sue on them, and let the wrongdoers alone in the possession of what they have obtained.</p> <p>There is no merit in the contention that the money should be levied of the assets of the said estate of Mrs. King in their hands to be administered, and not a personal decree against them. But while this is the general decree in relation to administrators de son tort, such rule does not apply when it is shown that they are liable by reason of having applied the estate to their own use or destroyed it, or otherwise become liable by such action as is shown in this case. To say that a decree should be reversed when it is shown that the party sued as executor de son tort paid his own debt with the money of the decedent, because the decree is for the payment of the money absolutely, would be a denial of justice. Of course he would not then have the effects of the decedent in his hand when he had paid it out. The case of Ilill v. Henderson referred to by counsel does not apply at all, for the reason, in that case the judgment was for the defendant for a certain sum to be levied of the goods and chattels of the decedent in his hands to be administered at the time of the death of the decedent remaining to be administered, and if not, then of his own goods and chattels. Hill v. Henderson, 13 Smed. & M., 689, 690.</p> <p>So, it can be readily seen that the judgment in that case made him liable for more than came into his hands, or might make him so liable. I recognize the rule that we can only make one who intermeddled in the estate of a decedent liable for the amount he uses of the estate, or the damage he causes by such intermeddling. But where the decree, as in this case, shows on its face that the sum for which the decree is entered, is the very sum the defendant has used, or made himself liable for, by his acts, then the decree is correct which is in the ordinary form. In the case of Peeler v. Peeler, 11 So. Rep., 318, the question being here discussed is not mentioned.</p> <p>The third assignment of error calls in question the decree because it is for money, notes and property which the defendants delivered into court as they were asked to do in the bill. Unfortunately for the defendants, the decree was not rendered on account of any note which they delivered into court, and no note for which the decree was rendered, was filed in the court, as the J. M. Weaver note was only there without the name, it having been torn off to show payment.</p> <p>The fourth assignment of error calls in question the correctness of the decree because the defendants were not allowed a credit for debts of the decedent paid by them. In the first place no defense of that kind was made by them in their answer. No notice was ever given to the complainants that any such defense would be made, and no evidence was taken on that point at all. In the second place, when an executor de son tort sets up plene administravit, he must show the validity of the debts which he has paid out of the assets.</p> <p>The brief of opposing counsel calls in' question the interest for one year of the money found, and one year too much on the Madox note, and ten pei’ cent, on the Henderson note, when it only drew six per cent. In relation to the money, it is true that there was a.mistake, as I now see the calculation was made from May 1, 1898, when it should have been for one year less. But we shall contend that, in the whole, there was not any too much interest calculated. But, if there should be, then we will enter a remitter of that amount. As to the Madox note, he says that he gave the note to Mrs. King about one year before she died, and that it was for $69.80, and drawing interest from date at ten per cent., and then says one year’s interest was added in the face of the note, and it bore interest from maturity at ten per centum, and that he tore it up in one second after Weaver gave it to him. But it will be seen that this failure to calculate interest for the proper time on the Henderson note more than covers the over calculation in the money on hand at the time of the death. It is also contended that the administrator of Mrs. King’s estate should have been a party to this proceeding. But there is no evidence of there being any administrator of her estate. It is a constant practice in this state to file bills for the partition of the estates of decedents, both real and personal, without there being any administrator appointed at all.</p> <p>In relation to the objection that the distribution is made per capita instead of per stirpes, I will say that every intendment shall be in favor of the decree in this respect, and it devolves upon the appellants to show that this is error. It is true that the original bill speaks of certain ones being entitled to one-ninth of one-half and others one-eighth of one-half of the estate. But other parties are made complainants by the amended bill, and in this it is simply said they are tenants in common — the complainants and the defendants — without saying the interest each is entitled to. The answer speaks of the heirs as being' tenants in common. We can very readily conclude that, when the other heirs were made parties, the statement of one-ninth of one-half and one-eighth of one-half was so changed as to make them equal heirs, and there is nothing to show that this is not the correct solution of the matter. All the presumption is in favor of the correctness of the decree. If it had been otherwise, it was a matter that the attention could have been called to very readily, and the correction made in the court below. Another point made in this assignment is that the complainant, Mrs. Mary Robinson, was not provided for in the decree, nor was Frank P. Allen, when the record shows that they were heirs and parties. As to Mrs. Robinson, we represent her, and she is certainly provided for in the decree. It is true that her name is not mentioned in the decree, but, for fear some of the parties should be left out, they being numerous, the decree, after reciting that the parties named should have their personal decree against the defendants, goes on to provide as follows: “And that each of the complainants and each of the defendants are hereby declared to be equal in the distribution of tbe proceeds of the sale of the lands and the proceeds of the collection of the said personal decree."</p>

From the circuit court of Madison county. Hon. Robert Powell, Judge. This was a suit brought by Marlett to recover damages for an alleged wrongful ejection from a passenger train.

Feom the circuit court of Lauderdale county. Hon. Gr. B. Huddleston, Judge. Unlawful detainer by appellant for the possession of property bought by it at sale under a trust deed in its favor. The opinion states the requirement of the deed in respect to notice of sale. The appellant had only been engaged in business as a building company since January 1, 1896, and its stock or shares had never represented monthly payments in excess of $500.

From the circuit court of Yalobusha county. Hon. Z. M. Stephens, Judge. The facts are stated in the opinion of the court. The railroad company was violating the law at the time they killed the dog (sec. 3546, code of 1892), and in doing so they did it at their peril. Railroad v. Toulme, 59 Miss., 284.