without notice, and not a chattel mortgage; and, further, that Walker was neither a creditor of the Ashmeads, nor a bona fide purchaser from them, and that he could have no greater rights in the press than the Ashmeads had, and that they could not dispose of the property in the payment of their debts.

We have carefully examined the question of Shouse's right to make the defense under discussion, and our conclusion is that he cannot do so. The mortgagors could not do it, and he has no greater power or privilege in the matter than they had, nor could they give him more. This conclusion is in accordance with the decided weight of authority, and entirely in harmony with the previous doctrines of this court on the same and analogous questions. It is a mistake to suggest that the case of Kent v. Lyon, 4 Fla. 474, holds that the administrator of a fraudulent grantor, dying in possession of the property, can urge his intestate's fraud as against a recovery by the fraudulent grantee or donee, such administrator coming into possession through his intestate. The contest there was not between the administrator and the fraudulent donee, but between a creditor of the intestate who had levied his execution on the property in the actual possession of the administrator and the donee; and the court held that deed of gift was void with reference to the creditor, and could be subjected to his execution as assets of the intestate. A careful consideration of the opinion will find that it distinguishes clearly the effect of the bill of sale or transaction, as between the creditor and the donee, from its effect as between the grantor or his administrator and the donee. The cases it cites illustrate the distinction, and it is only where a creditor is a party seeking to subject to his debt the property, or to assert his rights as such, that it is regarded as assets in the hands of the administrator, and in his favor alone is it regarded as assets, or the question of fraud permitted to be raised. The conclusion reached in Holliday v. McKinne, 22 Fla. 153, where the authorities are reviewed, is that the administrator of a fraudulent vendor of personal property, dying in possession, cannot, as against the vendee or donee suing him to recover possession, question the sale as having been made by the intestate in fraud of his creditors.

That a voluntary assignee for the benefit of creditors cannot, in the absence of legislation in aid thereof, resist the enforcement of a mortgage of his assignor, on the ground that it was made by the latter in fraud of his creditors, is shown by the following authorities: Williams v. Winsor, 12 R. I. 9; Wilson v. Esten, 14 R. I. 621; Brownell v. Curtis, 10 Paige, 210; Storm v. Davenport, 1 Sandf. Ch. 135; Van Heusen v. Radcliff, 17 N. Y. 580; Flower v. Cornish, 25 Minn. 473; Estabrook v. Messersmith, 18 Wis. 572; Hawks v. Pritzlaff, 51 Wis. 160, 7 N. W. Rep. 303; Wakeman v. Barrows, 41 Mich. 363, 2 N. W. Rep. 50; Bridgford v. Barbour, 80 Ky. 529; Burrill, Assignm. § 391.

Such an assignee is bound where his assignor would be bound. Morris' Appeal, 88 Pa. St. 368; Wakeman v. Barrows, supra.

The fact that some creditors are preferred by the deed of assignment does not increase the assignee's powers, nor does the fact that they have accepted the same.

The assignee cannot invoke the rule that he who hath done iniquity shall not have equity, any more than his assignor could. As to all defenses, he stands in the shoes of the former.

The conclusion of the court of errors and appeals of New Jersey in Pillsbury v. Kingon, 33 N. J. Eq. 287, that an assignee for the benefit of creditors may file a bill to set aside a conveyance made by his assignor in fraud of creditors, is not reached without invoking the aid of the statute of that state as to such assignments. Many of the authorities make a clear distinction in favor of the statutory assignees or trustees. We have no statute increasing the powers of such assignees in this respect. The act of 1881 (section 72, p. 829, McClel. Dig.) is "An act to authorize the real parties in interest to bring

and maintain suits at law in their own names in certain cases." In providing that all civil actions may be maintained in the name of the real party in interest bringing them, and that an executor, administrator, trustee of an express trust, including a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted, it was the purpose of this statute to regulate the question of parties in actions at law in the cases to which it applies, but not to change the effect of a voluntary assignment for the benefit of creditors by investing him with any right of action or defense which before its enactment his assignor did not have, and consequently could not confer. There is nothing in Robinson v. Nix, 22 Fla. 322, inconsistent with this view.

The decree dismissing the bill was erroneous. Upon the case made by the pleadings and proofs, we think the complainants were entitled to a decree. The decree appealed from is reversed, and the cause will be remanded for proceedings not inconsistent with this opinion. It is so ordered.

GARMON et al. v. STATE.

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

1. CRIMINAL LAW-COMPLAINT BEFORE JUSTICE-AMENDMENT.

Code Miss. 1581, as amended by act 1886, p. 85, authorizes an affidavit made in a justice's court for a prosecution for vulgar and indecent language to be amended after appeal to the circuit court.

2. WITNESS-CROSS-EXAMINATION-REBUTTAL.

Where a witness, in cross-examination, is questioned as to collateral and irrelevant matter, he cannot be contradicted in rebuttal as to such matter.

3. CRIMINAL LAW-TRIAL-EXCLUSION OF DEFENDANT.

A joint defendant in a trial for a misdemeanor, who is himself a witness, cannot be compelled to leave the court-room with other witnesses during progress of the trial.

Appeal from circuit court, Lee county; L. E. HOUSTON, Judge.

The appellants, Joe and Lawrence Garmon, were prosecuted in the justice's court for disturbing a family by vulgar and indecent language. They were convicted in the justice's court, but took an appeal to the circuit court, where the district attorney asked leave to amend the affidavit made in the justice's court against the defendants, which the court permitted, over the objection of the defendants. On the trial, when Lawrence Garmon was on the witness stand, he was asked concerning an immaterial matter, and the court allowed him to be contradicted in rebuttal as to this matter. The court, though the parties were being jointly tried, required Joe Garmon to leave the court-rooin with other witnesses, who had been put under the rule. The trial resulted in a verdict and judgment against the Garmons, from which they appeal. J. A. Blair, for appellants. T. M. Miller, Atty. Gen., for the State.

ARNOLD, C. J. The amendment of the affidavit in the circuit court was warranted by section 1581 of the Code, as amended by the act of 1886. Acts 1886, p. 85. It was error to allow Lawrence Garmon to be contradicted in rebuttal as to a collateral and irrelevant matter. A witness cannot be crossexamined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence. And if a question is put to a witness which is collateral and irrelevant to the issue, his answer cannot be contradicted by the party who asked the question; but it is conclusive against him. 1 Greenl. Ev. §§ 448, 449. The course pursued with this witness is not within any exception to the rule stated.

As to the appellant Joe Garmon, it was error to require him to leave the v.5so.no.18-25

court-room with other witnesses during the progress of the trial. It was his right to be present, and to see and hear what occurred in the trial, and to advise and assist his counsel; and the fact that he was a witness as well as a defendant did not deprive him of this right. And it does not alter the case, that he was being tried for a misdemeanor, instead of a felony, or that he might, by his own default or misconduct, have waived his right to be present. In French v. Sale, 63 Miss. 386, after the plaintiff had closed, the defendant, who was also a witness in his own behalf, was required, by an order of court, to testify before his brother who was a witness for the defense (and with whom he was charged to be in conspiracy for the purpose of cheating and defrauding his creditors) was examined, or to retire from the court-room while his brother was testifying, and this was sanctioned on appeal. But it was said in that case that to require a party to a civil suit to leave the court-room unconditionally, while the case to which he was a party was being tried, would be a violation of his legal rights. French v. Sale is supported by Tift v. Jones, 52 Ga. 538, and perhaps by other cases. 1 Greenl. Ev. (14th Ed.) § 432, note a. We find no authority that extends judicial discretion in such matter, beyond what was done in French v. Sale, and none that would warrant its exercise to that extent in any criminal trial. Ryan v. Couch, 66 Ala. 244; Chester v. Bower, 55 Cal. 46; Larue v. Russell, 26 Ind. 386; Crowe v. Peters, 63 Mo. 429; Schneider v. Haas, 14 Or. 174, 12 Pac. Rep. 236. Judgment reversed and cause remanded.

MERRITT v. STATE.

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

OBSTRUCTING JUSTICE-RESISTING OFFICER.

A conviction for resisting an officer cannot be sustained where it is not shown that the person resisted was an officer, or that the person whose arrest was resisted had committed any offense authorizing the arrest.

Appeal from circuit court, Lee county; L. E. HOUSTON, Judge.
George Merritt was convicted of resisting an officer, and appeals.

Clayton & Anderson and Clarke & Clarke, for appellant. T. M. Miller, Atty. Gen., for the State.

COOPER, J. The indictment charges that the appellant resisted an officer in the discharge of his official duty, in this: that said officer had arrested one Lucien Williams for violation of law, whereupon the appellant sought to take "Lucien More" from his custody. The evidence totally fails to establish any offense. It does not show that Green, who is said to have been resisted, was an officer. It fails to show that any offense was committed by Williams for which Green, if an officer, was authorized to arrest him. The judgment is reversed.

STEWART et al. v. MATHENY.

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

1. EJECTMENT-IMPROVEMENTS BY LIFE-TENANT-COMPENSATION.

One deriving title through a life-tenant, whose interest is plainly shown by the title papers, is not entitled to compensation from the remainder-man for improve

ments.

2. ESTOPPEL-IN PAIS.

The remainder-man is not estopped by permitting the improvements to be made without giving notice of his rights, where there is nothing to show any obligation to give notice.

3. TAXATION-TAX TITLE-RIGHTS OF TENANT FOR LIFE.

A tenant for life cannot acquire a tax title to defeat the title of the remainder-man. Appeal from chancery court, Monroe county; BAXTER MCFARLAND, Chancellor.

Bill by T. W. Stewart and others against J. M. Matheny to have the legal title to land conveyed to them. In 1840 complainants' father made a deed, conveying the land in controversy to trustees for the use of his wife, complainants' mother, during her life, remainder to the children, the complainants, the legal title to be conveyed to them on their attaining their majority. In 1854 the mother sold the land as if she owned the fee. Matheny bought the land in 1873, his grantors having acquired their title by successive sales from that made by plaintiffs' mother. Matheny made valuable improvements. The mother has since died. Matheny filed a cross-bill, in which he set up a tax title, and asked for compensation for the improvements. Complainants demurred to the cross-bill. The demurrer was overruled, and decree made for improvements. Complainants appeal.

Bristow & Walker, for appellants. Clifton & Eckford, for appellee.

CAMPBELL, J. If the rule which denies to a tenant for life of land compensation for improvements he puts on it during the continuance of his estate is subject to exceptions the facts of this case do not constitute one. In Cole v. Johnson, 53 Miss. 94, the expression "good faith" employed by our statute on the subject of the right of the defendant in ejectment to claim for improvements was held not to exclude the claim of one who had purchased land at a sale under a decree of a probate court, and paid for it and improved it, believing his title to be perfect. In Pass v. McLendon, 62 Miss. 580, one who had purchased land from a tenant for life, who held under a will of record in the county in which the land lay, in ignorance of the fact that his vendor did not have the fee, and believing that he acquired the fee, was not entitled to pay for improvements made by him during the existence of the lifeestate.

We adhere to both cases. One might well be excused from the requirement of forming a correct opinion as to the validity of a sale of land under a decree of the probate court, under the view taken of that court by the appellate court, and was not chargeable with bad faith or gross negligence (its equivalent) for believing, until informed to the contrary, that a sale made by a decree of the court intrusted with jurisdiction over the subject and parties was regular, and conferred title. But the purchaser of land must be conclusively presumed to know what appears on the face of the title papers under which he claims, and this presumption cannot be rebutted or explained away. He must take notice of his title as being a life-estate or a fee, where that title is plainly disclosed by the records accessible to him, and not to examine which, ordinarily, would be gross negligence. "The law will not permit him to deny notice by insisting that he had not read the deed." Wailes v. Cooper, 24 Miss. 208; Wade, Notice, § 308; Le Neve v. Le Nece, 2 Lead. Cas. Eq. 169.

Upon the facts of this case the holders of the land during the life-estate

must be held to have known the nature and duration of their estate, and to have improved it for themselves, taking the risk of its duration, and nothing is shown to entitle the life-tenant to pay for improvements. The averment that the remainder-men stood by and permitted the improvements to be made, and did not give notice of their claim, is not sufficient to sustain the claim of an estoppel against them, because there is nothing to show an obligation on them to interpose. The claim of title under the tax title set forth by the cross-bill cannot be maintained. A tenant for life cannot acquire a tax title to the defeat of the remainder-man.

The decree overruling the demurrer to the cross-bill is reversed, the demurrer sustained, and cause remanded.

LOUISVILLE, N. O. & T. Ry. Co. v. Caster.

(Supreme Court of Mississippi. January 28, 1889.)

RAILROAD COMPANIES-KILLING STOCK-NEGLIGENCE.

The fact that a train was running in an incorporated town at a greater speed than six miles an hour, when it struck and killed cattle, though such speed is negligence, does not render the company liable therefor under Code Miss. § 1047, unless the accident resulted therefrom, and whether it did so result is for the jury to determine.

Appeal from circuit court; Coahoma county; J. H. WYNN, Judge. Action by Sylvia Caster against the Louisville, New Orleans & Texas Railway Company, for damages for killing cattle within the incorporated town of Clarksdale. The following is the second instruction for plaintiff: "The court instructs the jury that if they believe from the evidence that the defendant railroad company's locomotive or cars killed the cow and two yearlings sued for, and that they were the property of Sylvia Caster, and that at the time said cow and yearlings were struck they were in the town of Clarksdale, and that the train that struck them was running at a greater rate of speed than six miles an hour when the engineer first saw said stock, then they will find for the plaintiff, even though they may further believe that the engineer used every effort to stop his train, and that the killing was unavoidable." Verdict and judgment against the railway company, and it appeals.

W. P. & J. B. Harris, for appellant. Cutrer & Cutrer, for appellee.

ARNOLD, C. J. The second instruction for the plaintiff below should not have been given. Running the train, in an incorporated town, at a greater rate of speed than six miles an hour, did not, under section 1047 of the Code, impose absolute liability on the railroad company for the killing of the cattle. It was negligence on the part of the company to so run its train, but unless the killing of the cattle resulted from, or was rendered unavoidable by, the rate of speed at which the train was running, the company was not liable. It should have been left to the jury to determine whether the injury was caused by the unlawful rate of speed of the train, or whether, under the circumstances, it could have been avoided if the train had been running at the rate of not more than six miles an hour. Railroad Co. v. Hart, 61 Miss. 468. Judgment reversed, and cause remanded.