planted crop had a "potential existence," making it the subject of a valid sale by the owner of the soil, and the court on this point said: "These tenants were purchasers of the land for the term of five years, to be used for agricultural purposes. As security for the price to be paid, they pledged the crop. The thing hypothecated was to spring out of the soil. It was directly connected with the land which the tenants owned for the term. The crops were contingencies depending on present existing property or interest in the lessees, and therefore the subject of sale or assignment. Story, Sales, § 186. While a person cannot make a present sale of all the wool that may grow on sheep which he may thereafter buy, nor of any other thing in which his interest is wholly prospective and doubtful, there may be a valid sale of the wine a vineyard is expected to produce, or the grain a field is expected to grow, the milk of a cow for the next year, or the future young of animals. Id. § 185." It is therefore settled by that case (1) that one may make a present sale or mortgage of things having a "potential existence, as the books designate it; and (2) that an unplanted crop has such "potential existence" as to the owner or lessee of the soil. The judgment is reversed, and judgment here on the agreed facts for the appellant.

LINDSEY V. STATE.

(Supreme Court of Mississippi. November 12, 1888.)

CONSTITUTIONAL LAW-EX POST FACTO LAW-CHANGE OF PENALTY AFTER INDICTMENT. Defendant was indicted for carrying concealed weapons while Code Miss. § 2985, prescribing the penalty therefor, was in force, and was tried after the act of March 9, 1888, amending section 2985 by striking out the clause which excepted from the prohibition persons apprehending an attack, and by increasing the penalty. Held, that the amendatory act was ex post facto as to defendant, and, section 2985 being repealed by it, defendant could not be punished for the offense.

Appeal from circuit court, Sharkey county.

James Lindsey was indicted and convicted for carrying concealed weapons unlawfully. He was indicted in 1887, at which time the statute on the subject (section 2985, Code 1880) did not prohibit one, who had good and sufficient reason to apprehend an attack, from carrying a concealed weapon. He was convicted and sentenced in 1888, after the legislature had amended section 2985, by striking out the words, "having good and sufficient reason to apprehend an attack," and by changing the penalty prescribed by making a minimum fine and a minimum period of imprisonment. Defendant appealed from the judgment imposing a fine of $30.

W. D. Brown, for appellant. T. M. Miller, Atty. Gen., for the State..

ARNOLD, C. J. In December, 1887, appellant was indicted for carrying a concealed weapon. At that time the punishment prescribed by section 2985 of the Code, for such offense, was by fine not exceeding $100, and, in the event the fine and costs were not paid, by hard labor not exceeding two months; and at that time the statute did not prohibit one, who had good and sufficient reason to apprehend an attack, from carrying concealed weapons. In May, 1888, appellant was tried on the indictment, convicted, and sentenced to pay a fine of $30; but, prior to that date, the legislature, by the act approved March 9, 1888, amended section 2985 of the Code, by striking out the words, "having good and sufficient reason to apprehend an attack," and providing, without any saving clause as to past offenses, that the punishment for carrying concealed weapons should be by fine not exceeding $100, nor less than $25, and, in the event the fine and costs were not paid, by hard labor not exceeding two months, nor less than one month. It is urged by appellant that he cannot be punished under the old law, because it has been repealed, nor under the amended law, because as to him it is ex post facto, both under the state and federal constitution.

The purpose and effect of the amendment to section 2985 of the Code was to repeal so much of the section as fixed the punishment for carrying concealed weapons, and permitted having a good and sufficient reason to apprehend an attack to be a defense to the charge, and to prescribe a new and severer punishment for the offense. The punishment prescribed by the amendment was substituted for and took the place of that provided by the section before it was amended. The section as amended made it unlawful for one to carry concealed weapons, though he might have good and sufficient reason to apprehend an attack, and it increased both the minimum of fine and imprisonment provided by the section before its amendment, and prescribed the only penalty for the offense. In this state of the law, how can appellant be lawfully punished for the offense with which he is charged? It is better that any criminal shall go unpunished than that any provision of the constitution shall be disregarded, or the foundations of the criminal law shall be unsettled. After the amendment to section 2985 of the Code was adopted, appellant could not be punished under the section as it existed before the amendment, because so much of it as related to the penalty had been repealed; and he could not be punished under the section as amended, because it operated prospectively from the date of the approval of the amendment, and, there being no saving clause as to offenses committed before the passage of the amendment, it could not be applied to him. Wheeler v. State, 64 Miss. 462, 1 South. Rep. 632. As to him, the amended law was clearly an ex post facto law-First, because it abrogated the right which before existed of defending against the charge on the ground that he had good and sufficient reason to apprehend an attack, and made an act criminal which was not so at the time the amendment was passed; and, second, because it changed, but did not mitigate, the punishment for the offense. Cooley, Const. Lim. 321-329; 1 Kent, Comm. 409; 1 Bish. Crim, Law, § 281; Calder v. Bull, 3 Dall. 386; Hartung v. People, 22 N. Y. 95; Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443; Com. v. McDonough, 13 Allen, 581.

There is perhaps no provision of our state or federal constitution founded on broader and juster views of human rights and liberty than that which prohibits ex post facto laws. Mr. Madison considered the clause of the federal constitution on the subject as a "bulwark in favor of personal security and private rights." Federalist, No. 44. Mr. Hamilton ranked it as a security to liberty equal to the writ of habeas corpus. Federalist, No. 78. Blackstone defines it to be an ex post facto law "when, after an act indifferent in itself is committed, the legislature for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it;" and he denounces such laws as more unreasonable than the methods of the Roman tyrant who wrote his laws in very small characters, and hung them upon high pillars, the more effectually to deceive and ensnare the people. 1 Bl. Comm. 46. In the interest of personal rights and liberty, this definition has been enlarged and liberalized by the general course of judicial decision in this country. In Calder v. Bull, 3 Dall. 386, ex post facto laws were classified by Mr. Justice CHASE as follows: "(1) Every law that makes an action done before the passage of the law, and which was innocent when done, criminal; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." This view of the character of ex post facto laws, with reference to our constitutional provisions against them, has been generally accepted and followed as correct. Cooley, Const. Lim. 323. Afterwards, in Fletcher v. Peck, 6 Cranch, 138, Chief Justice MARSHALL defined an ex post facto law" to be "one which renders

an act punishable in a manner in which it was not punishable when it was committed," and this definition has been regarded as distinguished for its comprehensive brevity and precision. 1 Kent, Comm. 409. And later, in Kring v. Missouri, 107 U. S. 221, 2 Sup. Ct. Rep. 443, the supreme court of the United States reasserts the opinion expressed by Mr. Justice WASHINGTON in U. S. v. Hall, 2 Wash. C. C. 366, that “an ex post facto law is one which in its operation makes that criminal or penal which was not so at the time the act was performed; or which increases the punishment; or, in short, which, in relation to the offense or its consequences, alters the situation of the party to his disadvantage." Garvey v. People, 6 Colo. 559, and State v. Willis, 66 Mo. 131, are to the same effect.

Such being the nature of ex post facto laws, it is nevertheless true that the punishment for offenses already committed may be changed by statute, provided the punishment is mitigated, and not increased or aggravated, by the change. As the constitutional provision was enacted for protection against arbitrary and oppressive litigation, it is quite evident that it is not violated by any change in the law which goes in mitigation of the punishment. There has been much diversity of opinion as to what would constitute mitigation of punishment in such case, but the view best sustained by reason and authority is that a law changing the punishment of offenses committed before its passage is objectionable as being ex post facto, unless the change consists in the remission of some separable part of the punishment before prescribed, or is referable to prison discipline or administration as its primary object. Cooley, Const. Lim. 329. It is enough for courts to render judgment according to law, without being required to determine the relative severity of different punishments, when there is no common standard in the matter by which the mind can be satisfactorily guided.

"If the law," says Judge Cooley, "makes the fine less in amount, or imprisonment shorter in period of duration, or relieves it of some oppressive incident, or if it dispenses with some separable portion of the legal penalty, no embarrassment would be experienced in reaching a conclusion that the law was favorable to the accused, and therefore not ex post facto. But who shall say, when the nature of the punishment is altogether changed, that the punishment is diminished or increased by the change? What test of severity does the law or reason furnish in these cases? and must the judge decide upon his own view of the pain, loss, ignominy, and collateral consequences usually attending the punishment? or may he take into view the peculiar condition of the accused, and upon that determine whether, in his particular case, the punishment prescribed by the new law is or is not more severe than that under the old law?" Cooley, Const. Lim. 324.

In Hartung v. People, 22 N. Y. 95, where a law was held inoperative as to offenses committed before its passage, Mr. Justice DENIO said: "It is enough, to bring the law within the condemnation of the constitution, that it changes the punishment after the commission of the offense by substituting for the prescribed penalty a different one. We have no means of saying whether the one or the other would be most severe in a given case. That would depend upon the disposition and temperament of the convict. The legislature cannot thus experiment upon the criminal law. It is enough, in my opinion, that it changes the punishment in any manner, except by dispensing with some divisible portion of it. * * * Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection; and any change which would be referable to prison discipline or administration as its primary object might also be made to take effect upon past as well as future offenses, such as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint, or the like. Changes of this sort might operate to increase the severity of the punishment of the convict,

but would not raise a question under the constitutional provision we are considering."

The doctrine of this case is commended as being just, simple, and readily understood, and it is well supported by authority. Shepherd v. People, 25 N. Y. 406; Ratzky v. People, 29 N. Y. 124; Kuckler v. People, 5 Park. Crim. R. 212; Carter v. Burt, 12 Allen, 424; Cooley Const. Lim. 329. Clarke v. State, 23 Miss. 261, is not regarded as in conflict with this doctrine, for there, while the punishment for the offense had been changed, there was a saving clause as to prior offenses, and the prisoner was sentenced under the law in force at the time the crime was committed. The judgment is reversed, and the cause dismissed.

ROBINSON v. JONES.

(Supreme Court of Mississippi. November 5, 1888.) EQUITY-JURISDICTION-MISTAKE IN DESCRIPTION-REMOVAL OF CLOUD.

The chancery court in Mississippi has jurisdiction of a bill to remove a cloud from title arising from a mistake in description in a partition agreement by which defendant occupies a portion of complainant's allotment; and in such proceeding the court should grant complete relief by taking an account of the rents and profits and improvements.

Appeal from chancery court, Noxubee county; T. B. GRAHAM, Chancellor. Some years ago the father of appellant, William Robinson, (complainant below,) died, leaving certain lands. These lands were partitioned between William Robinson and other heirs, and their several portions assigned to each, who went into possession. The co-heirs disposed of their lands to the appellee, Winston Jones, and some years afterwards it was discovered that a mistake had been made in the description of the lands allotted to each in the partition proceedings, the same being by agreement, evidenced by a memorandum in writing, in which the error in description occurred. However, the several co-heirs went into possession of their shares as they understood and intended. Jones went into possession under the deed from complainant's co-heirs, and consequently, because of the error in description, took possession of a part of the land allotted to complainant. This bill was filed by the guardian of William Robinson, non compos mentis, for the reformation of the "agreement" making partition, and that the successive conveyances might be declared to be a cloud upon his title, and the same removed; and, further, that an account of the rents and profits and improvements might be taken, and the same equitably settled. To this bill defendant interposed a special demurrer, to the effect that the court had no jurisdiction to grant relief in the premises. The chancellor sustained the demurrer to this extent: that the chancery court might adjudicate title to the land described so far as to enable it to remove clouds from the title of complaint, but no further, and from this decree complainant appealed.

Rives & Rives, for appellant.

Bogle & Bogle, for appellee.

CAMPBELL, J. The demurrer of Jones should not have been sustained as it was. If there was no statute on the subject of removing clouds from the title of land, this bill would be maintainable, and the court may and should grant complete relief. Decree reversed, demurrer overruled, and cause remanded for answer in 30 days after mandate filed.

GHIO et al. v. WESTERN ASSUR. Co.

(Supreme Court of Mississippi. November 5, 1888.)

INSURANCE-ACTION ON POLICY-DELAY-BREACH OF CONDITION-BAR.

A condition in an insurance policy that no suit against the insurer for any claim under the policy shall be sustained unless commenced within 12 months next after

the loss, and that the lapse of this period shall be conclusive evidence against the validity of any claim asserted in any subsequent action, is a bar to a suit commenced 12 months after the loss, it not appearing that this condition was waived by the insurer.

Appeal from chancery court, Hinds county; E. G. PEYTON, Chancellor. One Rivara, a merchant, had his stock of goods insured. The goods were burned, but the companies refused to pay. Rivara sued on all the policies held by him on his stock of goods except one, which was a renewal policy of the appellee. Rivara finally obtained judgment against the several insurance companies, whereupon the creditors of Rivara garnished the several insurance companies. The companies, being in doubt as to whom they should pay the money, after they had been garnished filed a bill of interpleader, offering to pay the money into court, and be discharged. Afterwards the creditors appeared, and asked the court that the money might be paid to them, and to have decree against the appellee company. There is a stipulation in the policy that no suit against the insurer for the recovery of any claim on a policy shall be sustained unless commenced within 12 months next after loss shall have occurred, and that the lapse of that time is conclusive against the validity of any claim asserted in an action subsequently commenced. There was a decree in favor of the assurance company, from which the complainants, creditors of Rivara, appealed.

Calhoon & Green and Nugent & McWillie, for appellants. Shelton & Crutcher, for appellee.

ARNOLD, C. J. It is provided by the terms of the policy in question that no suit or action against the insurer for the recovery of any claim on the policy shall be sustained unless commenced within 12 months next after loss shall have occurred, and that the lapse of this period shall be conclusive evidence against the validity of any claim asserted in any action subsequently commenced for its enforcement. It is not shown that anything was said or done by the insurer to waive or prevent the operation of this condition of the policy, and it is admitted that no suit or action was commenced on the claim until after the expiration of 12 months from the loss. The condition of the policy which has been referred to was valid, and upon the facts of record it was a bar to appellants' action. Wood, Ins. § 434; Riddlesbarger v. Insurance Co., 7 Wall. 386; Express Co. v. Hunnicutt, 54 Miss. 566. Affirmed.

DILLON v. PATTERSON et al.

(Supreme Court of Mississippi. November 26, 1888.)

Bell, upon a

FRAUDS, STATUTE OF-AGREEMENT NOT IN WRITING-ASSUMPTION OF FIRE RISK. A verbal promise to a landlord by a creditor who, as security for a debt owed him by a tenant, takes possession of the latter's crop, on which the landlord has a lien for rent, that he will assume the risk of fire upon being allowed to store it in a place considered dangerous by the landlord, is not within the statute of frauds. Appeal from circuit court, Hinds county; T. J. WHARTON, Judge, Action by Julia C. Dillon against Patterson and verbal contract of insurance. Mrs. Dillon had a lien on certain cotton grown by her tenants for rent of her plantation, and these tenants were indebted to defendants. To secure themselves the latter, by the consent of the tenants, but without plaintiff's permission, removed the cotton from the places where the tenants had stored it to a gin-house belonging to plaintiff. Plaintiff objected to its being stored there, on the ground of the greater danger from fire. Defendants agreed to assume the risk of fire, and the cotton was allowed to remain in the gin-house, where it was afterwards burned. This action was brought to recover for the loss of rent sustained by the destruction of the cotton, the tenants having failed to pay. The circuit court, regarding the con