and that carrying concealed weapons after its passage was an offense punishable as therein provided. Lindsey v. State, ante, 99.

In this condition of the law the indictment charged no offense. If appellant had pleaded guilty, he could not have been punished under it. On demurrer or motion to quash, it is admitted, and must be assumed, that the facts stated in the indictment are true, and that the offense was committed at the time therein specified. If it be charged that the act was committed at a time when it was no offense, the indictment will be insufficient. 1 Bish. Crim. Proc. §§ 403, 404.

That is the case at bar, and, as the indictment fixes the dafe of the act at a time when it constituted no violation of law, it is not relieved by section 3013 of the Code, which provides that “no indictment for any offense shall be held insufficient for omitting to state the time at which the offense was committed, in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened." The infirmity of the indictment is not a failure to state the time at which the offense was committed, nor for stating it imperfectly, or on a day subsequent to the finding of the indictment, or on an impossible day, or a day that never happened, and therefore section 3013 of the Code does not apply. Whatever else may be accomplished by this section of the Code, it cannot operate to create an offense, where none exists. Besides, it may be said that time is of the essence of the offense in cases like the one at bar. The essence of an offense is some essential element or constituent, without which it would not be an offense. Time is of the essence here, because it depends upon the time when the act was committed whether it was an offense punishable by law or not. "When," says the supreme court of Massachusetts, "a statute makes an act punishable from and after a given day, the time of the commission of the act is an essential ingredient of the offense, to the extent that it must be alleged to have been committed after that day." Com. v. Malony, 112 Mass. 283. Reversed and dismissed.

McIVER v. ABERNETHY et al.

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

ESTOPPEL-IN PAIS.

A corporation, whose authorized officers have attempted to convey its property, cannot appropriate the purchase money, and then, on the ground of a defective execution of the power of conveyance by such officers, recover the property in equity.1 Appeal from chancery court, Chickasaw county; B. MCFARLAND, Chancellor.

The Okalona Savings Institution, a corporation, sold certain lands to the appellees. The conveyances were executed by the president and cashier of the corporation, but not under seal. The purchase money of the lands so sold was received and used by the corporation, which afterwards failed. The appellant, a judgment creditor of the corporation, has had an execution issued and levied on the lands conveyed to the appellees. Appellees prayed and obtained an injunction to restrain the sheriff from further proceedings under this execution. The corporation had never adopted a seal. Appellant demurred to the bill for injunction, denying equity. Her demurrer was overruled, and she appealed.

'Concerning the estoppel of a corporation to deny its liability on contracts of which it has received the benefit, see Aultman v. Waddle, (Kan.) 19 Pac. Rep. 730, and note; Rockhold v. Association, (Ill.) 19 N. E. Rep. 710, and note.

Miller & Baskin and John W. Fewell, for appellant. W. T. Houston and T. J. Buchanan, Jr., for appellees.

COOPER, J. The position of counsel for appellant, that the assent of the corporation can only be shown by the use of its corporate seal, never received the sanction of American courts; and as to many contracts the earlier doctrine of the English courts has been modified. The contrary rule is so universally established in America that citation of authorities is unnecessary. We do not decide (because unnecessary to the disposition of this cause) whether the conveyances under which the appellees claim are valid at law to transfer the title of the corporation. It is sufficient to say that in any event appellees secured perfect equitable titles, and this is sufficient to sustain the decree. We know of no principle under which a corporation whose authorized officers have attempted to convey its property can appropriate the purchase money, and then, upon the ground of a defective execution of the power of conveyance by its agents, recover in equity the property. The decree is affirmed.

HOUSTON et al. v. SMYTHE.

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

1. LANDLORD AND TENANT-WHEN RELATION EXISTS.

Complainant held a deed of trust on land of A., which was presently subject to foreclosure. A. made a contract to sell the land to B. Complainant's attorney, at their instance, drew an agreement, by which A. leased the land to B. for the year 1887, for a certain sum to be paid as rent November 1, 1887; and if the rent-note, and also another note for a certain sum due November 1, 1888, should be paid promptly, the land was to be conveyed by A. to B.; but, if either note should not be so paid, A. or the assignee of the note should have the right to declare the lease and sale void. The notes were made payable to A. or bearer, and were intended beforehand by all the parties to be transferred to complainant, which was done. Held, that the relation of landlord and tenant was created between complainant and B., and that the former was entitled to an attachment for rent.

2. APPEAL-HARMLESS ERROR.

When it is apparent that the defeated party has no case, he is not prejudiced by errors of the trial court in rulings on the pleadings.

3. REPLEVIN-VERDICT-ASSESSMENT OF VALUE.

In replevin it is error to direct the jury, if they find for defendant, to fix the value of the property seized at a sum different from that stated in the pleadings of both parties.

Appeal from circuit court, Leake county; A. G. MAYERS, Judge.

Appellee, Mrs. M. S. Smythe, sued out an attachment for rent. Appellant S. S. Houston replevied the property attached, and so declared. Mrs. Smythe made an avowry, and justified the taking on the ground that plaintiff's note, payable to Samuel Houston or bearer, for the rent of the land, had been by said Samuel Houston transferred to defendant. To the avowry plaintiff in replevin replied that defendant was not the landlord of plaintiff, or the assignee of the lease, and defendant demurred. This demurrer was sustained, and plaintiff, having leave to file additional replications, pleaded the statute of limitations, and that the note was given in whole or in part for usurious interest. Defendant again demurred, and, the demurrer having been sustained, the case proceeded to trial. The declaration stated the value severally of the articles seized, (which was the value fixed by the sheriff in his return to the attachment writ,) and the avowry admitted the value to be as stated in the declaration; but a witness for defendant, who was not contradicted, testified that some of the articles were worth more. The court instructed the jury to find for defendant, and to assess the articles seized as testified to by the witness, instead of the value admitted in the pleadings. Judgment was ren

dered against plaintiff in replevin and the sureties on his replevin-bond, and they appeal.

D. C. Beauchamp and F. B. Pratt, for appellants. Calhoon & Green, for appellee.

CAMPBELL, J. The facts testified to by the Messrs. Houston are that Samuel Houston was indebted a considerable sum of money to Mrs. Smythe, which was secured by a deed of trust on land owned by him, and he determined to sell his land in different parcels, severally, to his two sons and his son-in-law, and to get Mrs. Smythe to take the notes they would give for the purchase price of the land in payment of the debt to her. Mrs. S. was applied to, and signified her willingness to take the notes of the purchasers of the land, to be drawn up by her attorney, Mr. Eads, after the manner of some he had prepared in a transaction she had with Mr. Wallace, and the Messrs. Houston were so informed, and referred by her to Mr. Eads. Thus referred, they applied to Mr. Eads, who promised to prepare the papers, and subsequently did so, and handed them to Mrs. Smythe, who took them to the residence of Mr. Houston to be executed. These papers consisted (so far as involved in this case) of a writing by which Samuel Houston (the owner of the land and debtor of Mrs. S.) agreed to lease a certain quarter section of his land to S. S. Houston, for the year 1887, for the sum of $215.62, to be paid as rent on the 1st day of November, 1887; and if the rent-note should be paid when due, or soon thereafter, and another note for the sum of $247.97, due 1st November, 1888, should be paid, in like manner, the title of the quarter section was to be conveyed by Samuel Houston to S. S. Houston. This writing contains the further provision that, if the rent-note and the other should not be promptly paid, Samuel Houston, or the assignee and holder of the note, should have the right to declare the lease and sale void and at an end, and no notice to quit should be necessary. This writing was duly executed by Samuel Houston and his wife. A note for $215.62, payable 1st November, 1887, for the rent of the land, and one for $247.97, payable 1st November, 1888, to Samuel Houston or bearer, corresponding to the description of them in the writing executed by Samuel Houston and wife, were duly executed by S. S. Houston, and they were indorsed by Samuel Houston, and delivered to Mrs. Smythe, who received them for the debt of Samuel Houston, as before agreed to be done. The quarter section of land mentioned in the writings was occupied by S. S. Houston, in pursuance of the arrangement, during 1887; and, the rent-note mentioned not being paid when due, Mrs. Smythe sued out an attachment for rent, and caused to be seized under it certain agricultural products of the land that year, and S. S. Houston replevied them. Samuel Houston agreed to sell, and S. S. Houston to buy, the quarter section of land at the price of $375, to be paid in equal sums at one and two years. Mrs. Smythe, who was to receive the notes S. S. Houston was to give for the land, desired the first payment to be a "rent-note," and in the hands of her attorney the written stipulations of the parties took the form of a lease for the year 1887, and a contract of sale, if the two notes should be paid. S. S. Houston understood the matter, and assented to this form of the transaction, and subscribed and delivered the notes, which he knew were to go into the hands of Mrs. Smythe for the debt of Samuel Houston. This debt was long past due, and the deed of trust on the land subject to foreclosure. The arrangement made with S. S. Houston as to part of the land embraced by the deed of trust was by the joint act of mortgagor and mortgagee. The form of the transaction was a contract of lease and sale by Samuel Houston, mortgagor, and a rent-note and a purchase note by S. S. Houston, payable to Samuel H. or bearer. In fact, the mortgagee, Mrs. Smythe, who might have caused the land to be sold under the deed of trust, procured the lease and contract of sale by virtue of which the occupancy of the land for 1887 was secured to S. S.

Houston with the ulterior rights of a purchaser; and while the notes were made payable to Samuel Houston, they were also to "bearer," and were intended beforehand to go into the hands of Mrs. Smythe, in pursuance of the scheme out of which they arose.

In this state of facts the real lessor of S. S. Houston was Mrs. Smythe, and she was entitled to an attachment for rent. She is not the mere assignee of a chose in action, without privity of estate in the land, but was mistress of the situation, with a deed of trust on the land, whereby she could have it sold; and, instead of doing this, entered into an arrangement whereby, acting through Samuel Houston, she let the quarter section of land to S. S. Houston for 1887, with ulterior right as purchaser. It matters not that S. S. Houston and his father, Samuel Houston, had agreed on a purchase and sale of the land, and that nothing was said about rent until afterwards. All that preceded was merged in the written contract. That fixed the position and rights of the parties. It was admissible for the parties to create the relation of landlord and tenant, as they did. The purpose of it is obvious, and, after expressly creating this relation for purposes of their own, it is not allowable afterwards to recede from it, or complain of its legal consequences. The validity of the attachment for rent, and the taking the goods by virtue of it, were indisputable as a legal proposition on the evidence of the plaintiff S. S. Houston, and no other result than a verdict for the defendant could be upheld by the court. The court erred in sustaining the demurrers, but the whole case was fully developed by evidence, and any other result than defeat to the plaintiff in replevin would not be tolerated. In such case it would be wrong to keep alive the controversy, which, as under the law it can have but one end, had better be at once terminated. Therefore, following numerous precedents, we will not inflict upon the party who must ultimately lose, the cost of further and useless litigation by remanding the case because of error in rulings on the pleadings, since it is manifest that no harm was done by these rulings.

But the circuit judge erred in directing the jury to fix the value of the articles seized under the attachment at a sum different from that stated in the pleadings of both parties, and for this error the judgment will be reversed, and the proper judgment will be entered here.

EVANS et al. v. HENLEY et al.

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

HUSBAND AND WIFE MANAGEMENT OF WIFE'S BUSINESS BY HUSBAND-LIABILITY OF MERCHANDISE TO HUSBAND'S DEBTS.

Under Code Miss. § 1300, providing that if any person shall merchandise with the addition of the words "Agent," "and Co.," or like words, and shall fail to have the name of his principal or partner conspicuously placed on a sign at his place of business, or shall carry on business in his own name without such addition, all goods, etc., used in or accruing in such business, shall, as to his creditors, be deemed his property, the stock used in merchandising under the firm names of "H. & C.," the surnames only of two partners, of whom the junior is a married woman, the business being conducted by her husband and the senior partner under partnership articles constituting the husband the wife's agent to manage her interest therein, are liable to the husband's creditors.

Appeal from circuit court, Monroe county; L. E. HOUSTON, Judge. Evans & Bright, judgment creditors of George L. Carroll, had an execution levied on certain merchandise in the store of Henley & Carroll, a firm composed of Henley and Mrs. Brodie Carroll, (the wife of George L. Carroll.) The sign over the store was "Henley & Carroll." By the articles of partnership, which were signed by Henley, Mrs. Brodie Carroll, and George L. Carroll, said George L. Carroll was to manage the business for his wife. On the trial the firm of Henley & Carroll, composed of Henley and Mrs. Carroll, inter

posed a claim to the goods seized, and judgment was entered for the claimants, from which Evans & Bright appealed.

Code Miss. 1880, § 1300, referred to in the opinion, provides that if any person shall transact business as a trader or otherwise, with the addition of the words "Agent," "Factor," "and Company," or "and Co.," or like words, and fail to disclose the name of his principal or partner by a sign placed conspicuously at his place of business, or if any person shall transact business in his own name without such addition, all property, etc., used in or accruing in such business, shall, as to the creditors of any such person, be liable for his debts, and be treated, in favor his creditors, as his property.

Sykes & Bristow, for appellants. R. E. Houston and G.J. Buchanan, for appellees.

COOPER, J. Under the facts disclosed by the record, George L. Carroll was not a mere clerk of the firm of Henley & Carroll. By the articles of partnership signed by Henley, Mrs. Carroll, and himself, he was appointed agent of his wife, and fully authorized to represent her in all matters having reference to the business. He was created vice-principal by the instrument, and we must assume that what he did in reference to the business was done under and by virtue of the agency conferred on him, and not as a mere clerk occupying a subordinate position, and subject to the direction and control of Henley, the active partner. By the very terms of the articles of partnership, he was to transact business as the agent and representative of his wife; was her alter ego, vested with full power to do whatever she might do in reference to the business of the firm. Under such circumstances, it was the duty of the principal (or of her agent) to display upon a sign at the place of business the name of the true owner, failing in which, as to the creditors of the husband, the property used or acquired in the business is to be treated as the property of the persons by whom the business was ostensibly transacted, viz., of the firm of Henley & Carroll, composed of Henley and George L. Carroll. True it is that the sign displayed was that of the firm "Henley & Carroll," and that the name "Carroll" might be applied either to George L. Carroll or to his wife, Brodie Carroll. But, under the circumstances disclosed, the statute applies the name to the ostensible owner,-to him who transacts the business,—unless the sign displayed "discloses the name of his principal or partner in letters easy to be read." Gumbel v. Koon, 59 Miss. 264; Wolf v, Kahn, 62 Miss. 814; Hamblett v. Stein, 65 Miss. --> 4 South. Rep. 431. The judgment is reversed.

HALL v. HALL.

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

DEED-RESERVATION-CONSTRUCTION.

A deed granting "unto my three sons the lands above described, the same being their pro rata share of my entire estate, both real and personal, that I do now or may hereafter own. The remainder of my estate, both real and personal, I reserve for the use and benefit of my younger children, J. and N., "-does not operate as a present conveyance to J. and N. of any of the land included in "the remainder of " the grantor's estate.

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

H. C. Hall, the appellant, executed a deed containing the following clause: “I, H. C. Hall, do by this deed of conveyance give and grant unto my three sons the land above described, the same being their pro rata share of my entire estate, both real and personal, that I do now or may hereafter own. The remainder of my estate, both real and personal, I reserve for the use and benefit of my younger children, to-wit, James Hall and Nannie Hall." After this.