receipt of Cox for the year 1886, in which the name of Lann had been written. But on the face of both receipts it appeared that they were given for the taxes of the year 1886. If Cox, pretending that he had paid the taxes of Mrs. Byrd and of Lann for the year 1887, had received from Lann money or other things of value by reason of such false pretense, he would have been guilty of obtaining money under false pretenses. But the receipts do not, on their face, appear to be receipts for the taxes of the year 1887. On the contrary, they clearly recite that they are for the taxes of 1886, which taxes Lann, as he then knew, had already paid. It was impossible that either the state, or the county, or Lann, or Mrs. Byrd, or any other person, could be injured by reason of the receipts. The injury, if any could arise, must have sprung from the declaration of Cox that he had paid the taxes of the year 1887; a fact not shown by the receipts. There is no suggestion that Lann ever paid or was asked to pay anything by Cox for the taxes paid by him for the years 1886 or 1887. The whole case is that Cox told Lann he had paid the taxes of 1887, and gave him altered receipts, by which the taxes of 1886 are acknowledged to have been paid, and told Lann that he would charge him up on account with the taxes of 1887. To constitute the crime of forgery the instrument itself must be of itself, or in connection with other things, capable of injury, if it were true, and not forged. Under the facts disclosed, the receipt, if true, could not, either alone or in connection with other facts, injure or defraud either the state, county, or any person whatever. The judgment is reversed, and cause remanded. SMITH v. CROMER et al. (Supreme Court of Mississippi. February 25, 1889.) 1. NEGOTIABLE Instruments-BILL OF EXCHANGE. The following instrument: "$365.74. Moss POINT, April 16, 1888. Received on board schooner Robert Delmas, from E. B. Smith, 2,244 barrels of charcoal, for which I promise to pay to the order of John J. Driscoll, at New Orleans, the sum of $365.74. LOUIS CROMER, Master, "-is not a bill of exchange, and an action may be maintained thereon against the maker without presenting it in New Orleans for payment. 2. SAME-ACTION ON-PARTIES-WAIVER OF DEFECTS. In an action on the above instrument, plaintiff joined other defendants with Cromer, who, he alleged, were "doing business under the firm name of Louis Cromer." The attachment writ was sued out against Cromer only. The other defendants pleaded that they did not make the writing, and denied partnership with Cromer. Held, that the court erred in excluding evidence tending to show their liability. By pleading they had put that question in issue, and had waived any objection on account of the omission of their names from the attachment. Appeal from circuit court, Jackson county; S. H. TERRAL, Judge. This is a proceeding by attachment. The affidavit alleged an indebtedness by Louis Cromer, but the declaration was against Louis Cromer and several other named persons, "doing business under the firm name of Louis Cromer." The following is the instrument sued on: "$365.74. Moss POINT, April 16, 1888. "Received on board schooner Robert Delmas, from E. B. Smith, 2,244 barrels of charcoal, for which I promise to pay to the order of John J. Driscoll, at New Orleans, the sum of $365.74. LOUIS CROMER, Master." The schooner, with the charcoal on board, ran on a bar and sunk, and, the defendant having first promised to turn over the schooner and cargo in settlement of the indebtedness, and afterwards having refused to do that, or to make any other satisfactory agreement about paying the indebtedness, this attachment was sued out and levied on the schooner and cargo. The defend ant Louis Cromer pleaded that the debt was not due when the attachment was sued out, and the other defendants pleaded that they did not make the writing, and that they were not partners with Louis Cromer, and did not promise, etc. On the trial the court refused to admit evidence that the defendants other than Louis Cromer were liable for the debt, for the reason that the attachment writ had only been sued out against him; and the court instructed the jury to find for the defendant, because the "bill of exchange for the debt sued on was given payable to John J. Driscoll, at New Orleans, La., and no demand was ever made for the payment of the bill of exchange by any person entitled or authorized to make such demand." Judgment was rendered against Smith, and he appeals. H. Bloomfield, for appellant. C. H. Wood, for appellee. CAMPBELL, J. The plaintiff should have been allowed to show by evidence the liability of the defendants other than Louis Cromer. They had pleaded, and their liability was the question at issue as between them and the plaintiff. The action of the court on the instructions was erroneous. The instrument sued on is not a bill of exchange. It was not necessary for it to be presented in New Orleans for payment. The plaintiff certainly showed himself entitled to a verdict against Louis Cromer, and proposed to show the liability of the other defendants, who had pleaded to his declaration, and denied liability, and the court denied him the right to show this. If any objection could have been made by the defendants who were not embraced by name in the attachment, they waived it by pleading to the action. Reversed and remanded. HART v. BLOOMFIELD. (Supreme Court of Mississippi. February 25, 1889.) 1. EQUITY-PRACTICE-HEARING. A defendant in equity, who is present by his counsel, and takes part in the hearing of the cause on the day set for hearing, without objection that it had been prematurely set, waives his right to further time in which to take proofs, though the hearing was in fact within five months from the filing of the answer. 2. SAME-DATE OF FILING ANSWER. Where an answer is sworn to on the day of filing, the fact that an additional and more formal jurat is filed on a subsequent day does not have the effect to change the date of filing the answer. 8. SAME-CANCELLATION OF DEED-PROOF OF TITLE. A complainant seeking to obtain a cancellation of defendant's title must show himself to be the owner, in law or equity; and if, the burden of proof being on him, he fails to establish his title, it is immaterial whether defendant's title is good or bad. Appeal from chancery court, Harrison county; S. EVANS, Chancellor. Bill filed by Juliana Hart against Horace Bloomfield, to cancel defendant's tax title to certain land. Decree for defendant, and complainant appeals. Nugent & Mc Willie and W. G. Evans, for appellant. W. P. & J. B. Harris, for appellee. COOPER, J. It is argued by counsel for appellant that the decree must be reversed, if for no other reason, because the cause was set for hearing one day before the expiration of the five months allowed by law for the taking of proof after answer filed. The answer of the defendant was filed on March 13th, and the cause was set for final hearing by the defendant on the 14th day of August following; but counsel for appellant contend that, when filed, the answer was not sworn to, but that the jurat was made on the following day, wherefore that day should be taken as the date of the filing of the answer. There are two replies to this position, either of which is sufficient. First, the record shows that the answer was subscribed by the defendant, and sworn to before the clerk on the day it was filed. Immediately following the signature of the . defendant is this certificate by the clerk: "Sworn to & subscribed before me this 13th March, 1888. F. S. HEWES, Clerk." On the following day an additional and more formal jurat was filed, but this did not have the effect of controlling the date of the filing. But it also appears by the record that the complainant was present by her counsel, and took part in the hearing of the cause, without objection on her part that it had been prematurely set for hearing. This was a waiver by her of her right to further time in which to take proof under the statute, if the hearing was in fact within five months from the filing of the answer. The decree must be aflirmed regardless of the validity of the defendant's tax title, for the reason that the complainant has not shown that she is either the legal or equitable owner of the lands in controversy. It is well settled that a complainant seeking to secure cancellation of the title of the defendant must show himself to be the owner, in law or equity, of the subject-matter in dispute. If he is not he has no reason to concern himself about the title of his adversary. The defendant denied complainant's averment that she was the owner of the land described in her bill, and this devolved on her the burden of establishing that fact. Huntington v. Allen, 44 Miss. 654; Adams v. Harris, 47 Miss. 144; Walton v. Tusten, 49 Miss. 569; Handy v. Noonan, 51 Miss. 166; Cook v. Friley, 61 Miss. 1; Phelps v. Harris, 51 Miss. 789; Griffin v. Harrison, 52 Miss. 824; Harrill v. Robinson, 61 Miss. 153. The decree is affirmed. NIXON v. TOWN OF BILOXI. (Supreme Court of Mississippi. February 25, 1889.) 1. MUNICIPAL CORPORATIONS-CONTROL OF STREETS. The charter of the town of Biloxi (Acts Miss. 1888, p. 206, §§ 27, 28) expressly confers upon the board of mayor and aldermen exclusive jurisdiction to order the removal of encroachments upon any street, sidewalk, or public alley within the corporate limits. 2. SAME STREETS-PROOF OF DEDICATION. Whether the street alleged to have been encroached upon was a public street or not was a question of fact provable either by record or parol evidence. A deed or written grant is not required to establish a dedication. Appeal from circuit court, Harrison county; S. H. TERRAL, Judge. The board of mayor and aldermen of the town of Biloxi, on petition, ordered that a fence which had been erected by appellant, R. L. M. Nixon, across one of the streets of the town, be removed. At the time the order was made Nixon appeared before the board by attorney, and moved that the petition be dismissed for want of jurisdiction in the board, which motion was overruled, and Nixon appealed to circuit court, where the same motion was made and overruled. On the trial both parol and documentary evidence which tended to show a dedication of the street to public uses was introduced over the objection of the defendant, Nixon, and, judgment being rendered against him, he appeals. Seal & Evans, for appellant. W. H. Maybin, for appellee. ARNOLD, C. J. The question of jurisdiction is settled by the charter of the town of Biloxi. Acts 1888, p. 206. §§ 27, 28. It confers upon the board of mayor and aldermen exclusive power and control over the subject of roads, streets, and alleys within the corporate limits, and it provides that “when any sidewalk, street, or public alley in said town has been or shall be encroached upon by any fence, building, or otherwise, the board of mayor and aldermen may require the owner or owners, if known, or, if not known, the occupant or occupants of the premises so encroaching, to remove the same, and if removal shall not be made within the time ordered by the board * * * the board may order the encroachment to be removed," etc. Whether the street in controversy was a public street or not was a question of fact, which might be proved by record or parol evidence. A deed or written grant is not required to establish the dedication of land to public use. Geo. Dig. 666. Affirmed. HARRISON COUNTY . Seal. (Supreme Court of Mississippi. March 11, 1889.) HIGHWAYS-DEDICATION-ACCEPTANCE. Where the owner of land has dedicated it as a public street, and conveyed lots as bounded by it, he cannot afterwards exclude the public from using it, or demand compensation for the land, though there has been no formal acceptance by the authorities. Appeal from chancery court, Harrison county; S. EVANS, Chancellor. COOPER, J. About 50 years ago a company called "The Mississippi City Company" procured a body of land in Harrison county, lying on the Gulf of Mexico, and laid it off into streets, blocks, and public squares. According to the plan of the company, this was to be the site of a great sea-port city, and they gave to it the name of "Mississippi City." A plat was made and filed in the office of the clerk of that county, as we infer from references made to it in certain conveyances found in the record of this cause. A copy of that plat is in the record, and from it we learn that there were nearly 300 squares bounded by streets numbered from 1 to 17, running east and west, and by about an equal number named for different states, running north and south. The prospective city was intersected by a street named on the map "Railroad Street," over which a prospective railroad was to run to a real depot building and wharf, which the company then and there built, and then became insolvent. The whole property was sold under execution and bought in by one Tegarden. Railroad street, as laid down on the map, is shown to have been 110 or 120 feet wide. After his purchase, Tegarden sold a number of the lots according to the plan of Mississippi City, several of which abutted upon Railroad street, and are described in the conveyances made as bounded by it. In one or more of the deeds it is expressly covenanted by him that Railroad street shall be left open forever. But the grantor frequently, in making other conveyances, reserved the right to close up other streets appearing on the map. One of the lots thus situated on Railroad street, was conveyed to the county authorities of Harrison county for the site of a court-house and jail, and the same were there located and yet remain. Directly opposite the court-house, and across Railroad street, is the post-office, and there are several residences on lots abutting on that street. Mississippi City never became a city, or even an incorporated village, in consequence of which there are no streets adopted as such by municipal authority; but the strip of land called "Railroad Street" has always remained open, except as encroached upon on the one side or the other by those who have built residences along its boundary. It has never been accepted by the county authorities as a public highway by an entry on its minutes, but it has been occasionally worked upon as a highway by the overseers of the roads, but only at points remote from the court-house, where, by reason of its passing through swampy ground, work has been necessary to keep it in repair. Within the limits extending from the court-house to the point of controversy in this suit, no work seems ever to have been needed, because of the sandy character of the land, and, consequently, none has been done. When Tegarden, the owner of the land, saw that there was but little prospect of building up a town upon his land, many of the streets laid down in the plat were closed up, and the land was sold in lots laid off without regard to the location of the numerous streets. Some evidence appears in the record tending to show a purpose on his part of cutting down the width of Railroad street to 30 feet, the limit of a county road. The extent of this evidence is that he claimed the right to do so. But it is not shown that those to whom he had conveyed lots situated on the street yielded to his claim, or that he ever attempted to take actual possession of the excess over 30 feet. In the year 1879 the heir at law of Tegarden conveyed Railroad street, or so much of it as exceeded 30 feet in width, by metes and bounds, to the appellee, who has had it assessed as his property, and paid taxes on it since that time. The board of supervisors of Harrison county have recently caused a public road to be laid out, which crosses Railroad street, and, not recognizing any right in the appellee to the land located within the limits of that street, failed to notify him of their action, or to award any damages for its use. The appellee thereupon exhibited this bill to enjoin the board of supervisors and the overseer appointed to work the road thus laid out from interfering with his land until there should be a formal condemnation and award of damages. The injunction having been made perpetual on final hearing, the board of supervisors prosecute this appeal. It is conceded by appellee that the evidence of an intention by Tegarden to make the dedication is ample; but the objection is made that there was no local authority to accept the dedication to its entire extent, and that the power of the county authorities to accept a highway does not extend to one more than 30 feet wide,—that being the width to which a public road is limited by law. As to a road 30 feet wide there is no controversy, the complainant contending only for the excess over that quantity. It seems to be well settled that to constitute a highway which the public authorities are bound to repair there must be an acceptance of it as such by the constituted authorities, which may be proved either by a formal acceptance or by repairing, and probably by the use of it by the public for many years with the knowledge and assent of the local authorities. But the question here is not whether the county is bound to keep in repair the whole of Railroad street as a public highway, but whether the owner of the fee can exclude the public use, or demand compensation for the land. It seems to be well settled that he cannot. In Beatty v. Kurtz, 2 Pet. 566, a lot of land on the plan of the town of Georgetown was marked by the owner, "For the Lutheran Church," and though there was no incorporated church to accept the dedication, it was held that, a congregation of that faith having used it for the purposes intended, the owner could not resume the property. In Cincinnati v. White, 6 Pet. 432, a public square and way were marked upon the plan of the town by the owners, and lots sold with reference to them. The town was not then incorporated, but the public used the property. It was decided that the absence of a grantee capable of accepting the grant was immaterial, and that the dedication was so far consummated as to preclude the owner from revoking the dedication. In Rowan's Ex'rs v. Town of Portland, 8 B. Mon. 232, the controversy was in reference to the effect of a plat of the town by the owner of the land, sales of lots with reference thereto, and use by the public of the streets laid down on the plan; and the court said: "The mere laying out of a town upon a man's own land, and by his own private act, and the making and recording of a plan of the town, may not, and as we suppose, do not, of themselves, conclude him to any extent. The land, not withstanding these acts, is still |