congregation of the religious society which owned the property in controversy, but this congregation had authorized him to act as one of the trustees with others named. The best evidence of the action of the register was the record of his proceedings, which could be proved by certified copy. So the church proceedings, selecting trustees, were relevant to show the authority conferred by the congregation on Little as their agent to make the application, although such selection may have had no legal validity without ratification by new appointment from the register. It may be that the church minutes do not belong to that class of records which are authorized to be proved by mere certified copies; but no objection was interposed to the evidence on this ground in the court below, and it must be considered as waived. Baucum v. George, 65 Ala. 259.

4. The action of the church authorities, imputing the cutting of the trees to the defendant, Allison, and appointing a committee with authority to compromise the matter with him, was not relevant to any issue in the cause, and should not have been admitted in evidence. The court erred in not sustaining the objection to it.

5. It was no defense to this action that the defendant had cut the trees by the instructions of certain persons, who had no lawful right to confer on him the authority to do so, although he believed they had such authority. He was the victim of his own credulity, and must be the sufferer by his negligence in not inquiring, rather than that the loss should be visited on another who is innocent. The fact that he acted in good faith, without the intention to trespass, was immaterial, and the evidence bearing on this point was properly excluded, to say nothing of the rule which precluded the defendant from testifying to his uncommunicated intention accompanying the alleged act of trespass. The evidence shows no mistake of fact as to whose land the trees were on, as in Russell v. Irby, 13 Ala. 131, where the defendant honestly believed that he was cutting trees on his own land, having mistaken the boundary line. Givens v. Kendrick, 15 Ala. 648.

6. The action would lie in the name of the plaintiffs, notwithstanding their appointment as trustees of the property was subsequent to the alleged trespass. This is precisely the kind of case to which the doctrine of relation will be applied. The original trustees were dead, and the trusteeship was vacant at the time of the trespass. The statute provides that, on the death of a sole or surviving trustee of an express trust, the trust-estate shall not descend to the trustee's heirs, or pass to his personal representatives, as at common law. Code 1852, § 1323; Code 1886, § 1848. The legal title of the trust property must thus always, in legal contemplation, at least, remain in the original trustee or his lawful successors. McDougald v. Carey, 38 Ala. 320. Upon the appointment of any successor, his title will, for certain purposes, relate back to the date of the death, resignation, or removal of his predecessor. The rule applicable to administrators, that the grant of letters of administration relates back to the time of the intestate's death, is precisely analogous. Kelly v. Kelly, 9 Ala. 908. In either case, the trustee is entitled to sue for any injury or damage done to the trust property during the intermediate vacancy in the trusteeship. His title for this purpose is permitted to relate to the time of the wrong done. This is based on the necessity of the case, and is designed to promote justice. If the law were otherwise, trust-estates would be subject to the most iniquitous spoliation by wrong-doers, who might select the period of accidental vacancies in administrations and other trusteeships for carrying out their schemes of plunder. Jackson v. Ramsay, 3 Cow. 75, 15 Amer. Dec. 242, note, 246-255; Hendon v. White, 52 Ala. 597-605; Laurissini v. Corquette, 25 Miss. 177.

The charges of the court, and other rulings not particularly considered, are free from error. Reversed and remanded.

HICKMAN . KANSAS CITY, M. & B. R. Co.

(Supreme Court of Mississippi. January 21, 1889.)

NEGLIGENCE-PLEADING-ALLEGATIONS OF COMPLAINT.

An allegation in a complaint against a railroad company for killing plaintiff's husband, that the injury resulted from the negligence of defendant's employes, implies that there was no contributory negligence on the part of deceased, and this need not be averred.

Appeal from circuit court, Union county; W. S. FEATHERSTON, Judge. Action by Julia Ann Hickman against the Kansas City, Memphis & Birmingham Railroad Company, for the alleged negligent killing of plaintiff's husband. Demurrer to complaint sustained, and plaintiff appeals.

Clayton & Anderson, for appellant. J. W. Buchanan, for appellee.

ARNOLD, C. J. Appellant, plaintiff in the court below, sued appellee to recover damages on account of her husband being killed by one of its trains. It is alleged in the declaration that the death was caused by the recklessness and negligence of the employes in charge of the train. A demurrer to the declaration was sustained on the ground that it failed to show that the deceased was free from fault, or in the exercise of reasonable care, at the time he was struck by the train. Whether it was necessary for the declaration to contain such an allegation is an open question in this state. Vicksburg v. Hennessy, 54 Miss. 391, to which we are referred by counsel, does not apply, for in that case the plaintiff's own testimony showed that the injury of which he complained was occasioned by his own fault, and neither the question of pleading nor the burden of proof was before the court. In Alabama, California, New York, and Texas it is held, in accordance with the precedents of declarations at common law in like cases, that it is not necessary, in an action to recover damages for personal injuries caused by the negligence of another, for the plaintiff to allege specially or distinctly in the declaration that the injury occurred without fault on the part of the person injured, or that he exercised reasonable care to avoid it. Railroad Co. v. Crenshaw, 65 Ala. 566; Robinson v. Railroad Co., 48 Cal. 409; 1 Estee, Pl. & Pr. § 1836; Lee v. Gas-Light Co., 98 N. Y. 115; Railroad Co. v. Murphy, 46 Tex. 356; Hackford v. Railroad Co., 6 Lans. 381. A different rule prevails in some localities, but it is believed that the weight of reason and authority is against it. The allegation that the injury was produced in consequence of the negligence of the employes of the defendant implies that there was no negligence on the part of the deceased contributing to it, and, as a matter of pleading, it was sufficient. If, on such an allegation, the proof should show that the injury did result from the negligence of the employes of the defendant, and there was no testimony imputing such negligence or want of reasonable care to the deceased as would bar recovery, it is not perceived why the plaintiff would not be entitled to judgment for the damages that might be proved.

Judgment reversed, demurrer overruled, and cause remanded.

GROSS v. BARTLEY.

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

LANDLORD AND TENANT-DISTRESS FOR RENT-RIGHTS OF ASSIGNEE.

An assignee of a note given by a tenant in payment of rent is not entitled to the remedy by attachment given by Code Miss. §§ 1302, 1324, to a landlord, grantee of demised premises, or of the reversion thereof, their heirs, executors, and administrators.

Appeal from circuit court, Madison county; T. J. WHARTON, Judge.

v.5so.nos.12-14-15

C. L. Gross sued out an attachment and had seized certain cotton belonging to Alexander Bartley, who had raised the cotton on land rented from one ParThe agreed statement of facts is as follows:

sons.

"Parsons rented a tract of land to the defendant, Alex. Bartley, and took the following writing from Bartley:

"CANTON, MISS., March 1, 1887. "On October 1st after date I promise to pay to the order of D. W. E. Parsons (3) three bales lint cotton, total weight 1,450 lbs., and all seed out of 2 bales of cotton, each weighing 500 lbs., for rent of land for the year 1887. "ALEX. BARTLEY.'

[Signed]

"On the reverse side of this instrument there is a credit of 475 lbs. cotton, valued at $37.54, and the following writing:

"I hereby transfer the within rent note to C. L. Gross, for payment on account to amount of $94.08.

[Signed]

"D. W. E. PARSONS.'

"This was the only agreement between said Parsons and Bartley, and the only land rented by Parsons to Bartley."

The case was submitted to the court without a jury, and the court rendered a judgment for Bartley, on the ground that the assignee of the note, Gross, had no right to the remedy by distress against the tenant, Bartley; from which judgment Gross appealed.

G. W. Thomas, for appellant. F. B. Pratt, for appellee.

COOPER, J. The appellant is not the landlord nor the grantee of the demised premises, or of the reversion thereof, and the remedy by attachment for rent is, by the statute, limited to such persons, their heirs, executors, and administrators. Code, §§ 1302, 1324.

It is true that, by section 1301 of the Code, a statutory lien is given to the landlord upon the agricultural products of the demised premises, to secure the payment of the rent. But the remedy to enforce the lien by attachment is limited by the other provisions of the Code noted. Taylor v. Nelson, 54 Miss. 524, was decided under a statute giving a lien, and permitting any lienor to enforce it by the statutory remedy. Under the law as it now stands, the remedy provided by the statute is expressly limited to persons occupying a relation to the land, and the appellant is not within the class. The judgment is affirmed.

HILLER V. LEVY.

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

PAYMENT APPLICATION-RIGHTS OF PURCHASER OF MORTGAGED PROPERTY.

One M. bought a mule, for which he gave his note secured by a deed of trust on the mule. The note and deed were assigned to plaintiff. M. bought supplies from plaintiff to an amount in excess of the note, and delivered all his cotton crop to him to be applied to the unsecured portion of his account; but did not deliver sufficient cotton to discharge all he owed, there being a balance due secured by the deed of trust. M., in the mean time, sold the mule so mortgaged to defendant. Held, that the application of the payments was between the mortgagor and plaintiff, and defendant had no right to object to anything they did in the matter.

Appeal from circuit court, Madison county; T. J. WHARTON, Judge. One Middleton bought a mule for the sum of $125 from Mrs. Palmer, for which he gave his note, and executed a deed of trust on the mule to secure said note. The note and deed of trust were assigned to Nathan Hiller. Middleton bought supplies from Hiller, and, after his crop was made, he delivered all his cotton to Hiller, to be applied to his account for supplies; but he

did not deliver sufficient cotton to discharge all he owed, there being a balance due Hiller. In the mean time Middleton sold the mule so mortgaged to S. Levy, who refused to surrender it to the trustee in the deed of trust owned by Hiller. Hiller brought replevin to recover the mule, and, a judgment being rendered against him, he appealed.

F. B. Pratt, for appellant. Smith & Powell, for appellee.

CAMPBELL, J. The judgment should have been for the appellant. The principle that delivery of the mortgaged property to the creditor operates as a discharge of the mortgage debt, unless otherwise agreed between the parties, as held in Ogden v. Harrison, 56 Miss. 743, is not available to the appellee, for the deed of trust did not embrace anything besides the mule. The rule that payments not appropriated by the payor or payee will be appropriated by law for the debtor's benefit cannot help him, because they were appropriated by the parties who had the right to dispose of them, regardless of the interest or wishes of appellee, who did not sustain any relation to the thing with which the payment was made to give him the right to insist on any appropriation of payments; and for the further reason that, if the parties had not appropriated the payments, it is not apparent what benefit it would be to the debtor, Middleton, to pay off the mortgage on the mule he had sold to the appellee. His interest was to pay the debts he owed, and not to clear the mule of incumbrance for the benefit of the appellee, and he seems to have acted on this view.

The claim of the appellee, the purchaser of a mortgaged mule, that he had any right to be heard as to the dealings between the mortgagor and mortgagee as to other things than the mule, is without foundation. If the mortgage on the mule was paid, he was entitled to the mule; but whether it was paid or not was determinable by the dealings of the parties, without any right in him to object to anything they did with that to which he had no sort of claim.

Reversed and remanded.

BOURDEAUX, Sheriff, v. WARREN COUNTY.

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

1. BAIL-RIGHT OF SHERIFF TO TAKE.

Where a capias issued to a sheriff is returnable forthwith, during the term of court at which the same is awarded, it is not proper for the sheriff to take bond for the appearance of the accused, after he has arrested him.

2. SHERIFFS AND CONSTABLES-FEES-ALIAS CAPIAS.

Where a sheriff had responded to a motion to show cause why he should not be fined for failure to properly execute an original capias, and had shown cause, and satisfied the court that the fine should not be imposed, and the motion had been dismissed, it was error to refuse to allow him compensation for the execution of an alias capias.

3. SAME.

The sheriff's account, as presented, in which he claimed 20 cents per mile for going, and 20 cents per mile for returning, should not have been allowed in full; Code Miss. § 447, providing 20 cents per mile, in such case, as compensation, both for going and returning.

Appeal from circuit court, Warren county; RALPH NORTH, Judge. Certain parties were indicted by the grand jury of Warren county. A capias was issued to R. M. Bourdeaux, sheriff of Lauderdale county, directing him to forthwith arrest the indicted party, (who lived in his county,) and bring him before the circuit court of Warren county. Bourdeaux arrested the party, but admitted him to bail, and returned the capias and bail-bond to the circuit court of Warren county; whereupon the district attorney made a motion (1) for an alias capias for the arrest of the indicted party; and (2)

that the sheriff be fined for failing to obey the command of the first capias. The alias capias was issued, directing the immediate arrest and production of the indicted party in the circuit court, as ordered in the original capias. Bourdeaux executed the alias capias by arresting the party, and produced him in the circuit court, as directed, and, in answer to the motion that he be fined for failure to execute the original capias as directed, made an excuse which was satisfactory to the court, which dismissed the motion as to fining the sheriff. Bourdeaux then presented his claim for bringing over the prisoner under the alias capias, which the court refused, on motion to allow, on the ground that he failed to execute the original capias as commanded, from which Bourdeaux appealed.

McCabe & Anderson, for appellant.

ARNOLD, C. J. The capias being returnable forthwith, during the term of the court at which the same was awarded, it was not proper for the sheriff to take bond for the appearance of the accused after he had arrested him. Code, § 340; Moss v. State, 6 How. (Miss.) 298. It was the duty of the sheriff, after arrest, to take the prisoner immediately to court, according to the mandate of the writ. After the sheriff had responded to the motion to show cause why he should not be fined for failure to properly execute the capias, and had shown cause, and satisfied the court that the fine should not be imposed, and the motion had been dismissed, it was error to refuse to allow him the compensation provided by law for the due execution of the alias capias. He had answered for his delinquency, and had obtained the judgment of the court in his favor, in regard to the execution of the capias, and he could not be held liable on that account again. But the claim of the sheriff, as propounded, should not have been allowed in full. By section 447 of the Code, a sheriff is allowed, for removing a prisoner on habeas corpus, change of venue, or otherwise, for every mile, going and returning, 20 cents. By the account presented the sheriff claimed 20 cents per mile for going, and 20 cents per mile for returning. This was not according to the statute. The statute provides 20 cents per mile, in such case, as compensation, both for going and returning, and it does not authorize the allowance of 20 cents per mile for going, and 20 cents per mile for returning.

The judgment is reversed, and the cause remanded.

BONELLI et al. v. BLAKEMORE et al.

(Supreme Court of Mississippi. December 3, 1888.)

1. EASEMENT-RIGHT OF WAY-GRANT BY PAROL.

A right of way is an interest in lands, and a grant thereof by parol is void, under the statute of frauds.

2. SAME-CREATION BY DEED.

The use of the word "appurtenances" in a deed is not sufficient to show an intention to create an easement, where none existed before.

3. SAME-CONVEYANCE-IMPLIED GRANTS.

A way over an adjoining lot is an easement to the enjoyment of which the act on the party is essential, and is therefore not a "continuous" easement; and, not being one of necessity, does not pass by conveyance by the common owner, under the doctrine of implied grants.

Appeal from chancery court, Warren county; W. R. TRIGG, Chancellor. Bill by Frank T. Blakemore et al. against Bonelli Bros., to compel defendants to remove certain obstructions, alleged to prevent complainants from enjoying a right of way, and to enjoin the further obstruction thereof. Decree in accordance with the prayer of the bill, and defendants appeal.

Catchings & Dabney, for appellants. McCabe & Anderson, for appellees.