was to have the entire assets of the firm of Watts & Patton, except only the portion reserved to Watts, the complainant would have no just ground of complaint, even if as between Bonner and Patton an arrangement more beneficial to Patton had been previously stipulated for by him than he divulged to complainant. The misrepresentation, under such circumstances, would be immaterial, because, whether what Patton said was true or false it could not damage Watts. On the other hand, if Patton, who was a joint owner with Watts, and who took upon himself the duty of finding a purchaser of the common property, fraudulently concealed from his co-owner the price at which Bonner agreed to buy, and procured Watts to sell at a smaller sum, or if Bonner was to pay the sum named for a part interest only in the assets, leaving an interest in Patton, Watts was thereby defrauded by Patton, and would be entitled to hold him as trustee for the increased price received, or for the interest in the assets secured to himself by the sale. We do not know upon which of these theories complainant proceeds. The only averment in reference to the facts is that "Patton made an arrangement with Bonner more favorable to himself than he represented to complainant." But whether this arrangement was injurious to complainant, and, if so, how, is not stated. It must be an injury to complainant, and not a mere benefit to Patton, to give a right to complainant to relief. The demurrer was therefore properly sustained.

It is next said that the court should have permitted the complainant to amend his bill. But the record does not show in what way he proposed to amend. Not knowing what amendment was desired, we cannot say that the court erred in refusing to permit it to be made.

The decree is therefore affirmed.

NEW ORLEANS & N. E. R. Co. v. BOURGEOIS.

(Supreme Court of Mississippi. March 4, 1889.)

RAILROAD COMPANIES-LIABILITY FOR INJURIES TO STOCK.

Cattle belonging to plaintiff got on the track of the defendant railroad company within a few yards of a rapidly moving train, and were run over and killed. The engineer did not see the cattle until they were so close that he could not stop the train in time to save them, though, after he saw them, he did everything that was possible to avoid the collision. Held, that the defendant was not liable, although the engineer might have seen the cattle near the track for several hundred yards ahead.

Appeal from circuit court, Hancock county; S. H. TERRAL, Judge. This is an action brought by the appellee, Bourgeois, to recover damages, for the killing of some cattle by the railroad company's trains. The first instruction asked by the railroad company, and refused, is: "The court instructs the jury to find for the defendant." The facts are sufficiently stated in the opinion.

Fewell & Brahan, for appellant.

Ford & Ellis, for appellee.

ARNOLD, C. J. This action was brought by appellee to recover damages for the killing of three head of cattle by appellant's train. The cattle were killed at different times and places. The testimony shows, without conflict, that the animals were not on the track until the train came near them, when they got on, or attempted to cross, the track, within a few yards of the engine, running at the rate of from 20 to 30 miles an hour. It appears from the testimony for appellee that at the places where two of the cattle were struck the view along the track for several hundred yards was unobstructed, and that stock on or near the track might have been seen that distance. This is not denied, but the engineer who was on the train testified, and he is not

contradicted on this point, that he did not see either of the cattle until they were so near the engine that he could not check or stop the train in time to save them, and that he sounded the whistle or stock-alarm and did all he could, under the circumstances, to prevent the collision, but was unable to do so. It is not shown or suggested that the engineer could or should have done anything that was not done after the cattle got on the track, but the contention is that he might have seen them near the track, and should have reduced the speed of the train, or stopped it, before they came upon the track.

We need not consider what degree of care, consistent with his other duties, was required of the engineer in keeping on the lookout for obstructions on the track, for if it be admitted that he saw the cattle near the track, before they came upon it, the view contended for cannot be sustained. If adopted without qualification, it would go far to destroy the value, and defeat the purposes for which railroads are constructed. Rapid movements and regular connections are among the chief advantages of transportation by railroads. These are demanded both by the interests of the public and of railroad companies. Railroad companies, in the prosecution of their lawful business, have a right to a clear track, and to the exclusive use and enjoyment of their property, subject, of course, to the condition upon which all others own and use property, that they must so use it as not to injure the person or property of others, if it can be avoided by reasonable care. Railroad companies are not liable in damages for every injury that may be inflicted by their trains. If a law were to declare them so liable, without reference to whether there was negligence or fault on their part or not, it would be unconstitutional, and void. Zeigler v. Railroad Co., 58 Ala. 594. They are responsible for injuries caused by their negligence or want of skill or care; but there is no reason in law or morals for holding them to a stricter measure of accountability for inevitable misfortunes than would be exacted from natural persons for injuries which resulted from unavoidable accident. Zeigler v. Railroad Co., supra. It cannot be said to be the duty of a railroad company to check the speed or stop its passing train, every time an animal is seen near its track, un. less there is something to indicate danger or the necessity of the animal going upon the track, and if an animal, when first discovered on the track, is so near the engine that collision cannot be prevented by the prompt use of all proper appliances, and the animal is killed or injured, no liability for damages is thereby incurred by the company. Impossibilities are no more required by law of railroad companies than of other persons. Railroad Co. v. Caldwell, 83 Ala. 196, 3 South. Rep. 445.

Ordinarily the discovery of animals near the road does not require checking the speed or stopping the train. That should occur only when it seems necessary to avoid collision. Something must be confided to the discretion of the engineer or person in charge of the train, and infallibility on his part is not expected or required. The use of the whistle or stock-alarm is generally sufficient to keep stock out of the way of the train. Unless appearances reasonably indicate danger of their going upon the track, neither the stoppage nor an effort to stop the train is required, but when existing conditions suggest such danger, they must be heeded, and failure to do so will constitute negligence. Railroad Co. v. Brumfield, 64 Miss. 637, 1 South. Rep. 905; Railway Co. v. Trotter, 37 Ark. 593. In all actions against railroad companies for damage done to person or property, proof of injury inflicted by the running of the locomotives or cars of such company is prima facie evidence of the want of reasonable skill and care on the part of the servants of such company in reference to such injury. Code, § 1059. Such evidence, if there is none other, entitles the plaintiff to verdict, but such evidence is not conclusive. It may be rebutted and overcome, and the railroad company may acquit itself of negligence in the matter if it can; and where the circumstances attending the injury are shown by the evidence, the case must then be deter

mined by the jury, on the facts proved, and not upon any presumption of negligence created by the statute. Railroad Co. v. Phillips, 64 Miss. 693, 2 South. Rep. 537.

On the facts of record the verdict should have been for appellant. It was error to refuse the first instruction asked by appellant. The judgment is reversed, and a new trial awarded.

Act Miss. March 8, 1888, relating to judicial districts, did not remove from office the circuit judges and chancellors not thereby assigned to the districts created by the act, but these might continue to discharge their duties in their old districts till the expiration of their terms. Such judges and chancellors were therefore entitled to the benefit of section 35 of the act, allowing each chancellor and judge a salary of $2,750 per annum, instead of his former salary of $2,500.

Appeal from circuit court, Hinds county; J. B. CHRISMAN, Judge. Application by T. J. Wharton, judge of the Ninth judicial district, for mandamus against W. W. Stone, auditor of public accounts, to issue him a warrant for the difference between his salary under the Code and that provided by act March 8, 1888. Judgment for relator. Respondent appeals.

T. M. Miller, Atty. Gen., for appellant. Frank Johnston, for appellee.

COOPER, J. In Price v. Anderson, 65 Miss. -, 4 South. Rep. 96, we construed the act entitled "An act in relation to judicial districts for circuit and chancery courts," approved March 8, 1888, as not removing or intending to remove from office the circuit judges and chancellors who were not thereby assigned to the districts created by said act, but that such judges and chancellors might thereafter discharge their official duties in the districts as they before existed until the expiration of their respective terms of office. The appellee, the Hon. T. J. Wharton, judge of the Ninth judicial district, as it existed prior to the passage of the act of March 8th, continued in the performance of his duties as such judge until the expiration of his term of office on the 16th day of October, 1888. By the thirty-fifth section of the act of March 8th, it was declared that "there shall be allowed and paid to each chancellor and judge, in monthly payments, a salary of $2,750 per annum." Prior to this time the salaries of chancellors and circuit judges had been $2,500 per annum, and the auditor of public accounts, construing the act above named as increasing only the salaries of the judges and chancellors who were by it assigned to the districts thereby created, refused to pay to the relator the increased salary. This suit is mandamus to compel the auditor to issue to relator a warrant for the difference between the salary earned under the act of 1888 and that paid him by the auditor under the provisions of previous laws. We find nothing in the language of the act indicating a purpose on the part of the legislature to allow a greater salary to one judge than to another. The relator was as much a judge after as before the passage of the act referred to, and, being such, was entitled to the salary fixed by law. The judgment

is therefore affirmed.

SMOKEY V. PETERS & CALHOUN Co.

(Supreme Court of Mississippi. March 11, 1889.)

1. ATTACHMENT-INDEMNITY BOND-NEGLIGENCE OF SHERIFF.

Sureties on an indemnifying bond are not liable for injury to goods attached resulting from the negligence or misconduct of the sheriff in keeping them.

2. SAME-DETENTION-CONFUSION OF GOODS.

One whose goods were intermixed with those of an attachment debtor, but who claimed the whole, and refused to designate what belonged to him, cannot recover of the sheriff, or of the sureties on his idemnity bond, damages for the seizure and detention of his goods.

Appeal from circuit court, Adams county; RALPH NORTH, Judge.

Action by J. H. Frank Smokey against the Peters & Calhoun Company as surety on an indemnifying bond, made to prevent the release of certain property which had been seized by the sheriff under a writ of attachment at the suit of said company against the appellant's mother. The attachment was levied by the sheriff on a stock of goods, the bulk of which was claimed by Smokey, and on the trial of the attachment it was so adjudged to be his, but some of the stock of goods was adjudged to be the property of his mother, and subject to the attachment. It was proved that Smokey had refused to designate which goods belonged to his mother and which to himself when the sheriff was about to levy the attachment; also that the damage to the goods resulted from the want of care and skill in taking care of them by the sheriff, while he had charge of them. Verdict ordered for the defendant, and judgment so entered. Plaintiff appeals.

James G. Leach and Hooker & Hooker, for appellant. Martin & Lanneau, T. Otis Baker, and Calhoon & Green, for appellee.

ARNOLD, C. J. It was the duty of the sheriff, after the property had been seized under the writ of attachment, to take care of it, and, if he failed to do so, he and the sureties on his official bond were liable therefor to the party injured. Com. v. Cole, 46 Amer. Dec. 515; Wap. Attachm. 279, 280. The bond of indemnity neither increased nor lessened his obligations in this respect. James v. Thompson, 12 La. Ann. 174. The sureties on the indemnifying bond were not liable for the negligence or misconduct of the sheriff in keeping the property. Their only liability was for the consequences that might result from the lawful discharge of the sheriff's duty in seizing the property, and appropriating it to the payment of the attaching creditor's debt. Murfree, Off. Bonds, § 788; Boynton v. Morrill, 111 Mass. 4; O'Donohue v. Simmons, 31 Hun, 267.

The goods claimed by appellant having been levied on under the writ of attachment as part of a stock of goods intermixed with those of the defendant in the attachment, and appellant having claimed the whole of the stock, instead of pointing out and giving notice to the sheriff of what particular part of it belonged to him, he is not entitled to recover damages for his part of the goods having been seized and held by the sheriff, until they were, for the first time, designated as belonging to him on the trial of the claimant's issue. It was the duty of the sheriff to levy on the goods of the defendant in attachment, notwithstanding they were intermixed with those of appellant; and he had a right, and it was his duty, to take and keep the whole until appellant identified his part of the stock, and demanded that it should be delivered to him. The sheriff cannot be treated as a trespasser for doing what he had a right to do; and whatever would be a good defense to him if no indemnifying bond had been taken, is a good defense to those who, by such bond, assumed his liability. Drake, Attachm. § 199; Lewis v. Whittemore, 5 N. H. 364; Wilson v. Lane, 33 N. H. 466; Shumway v. Rutter, 8 Pick. 443; Yates v.

Wormell, 60 Me. 495; Moore v. Allen, 25 Miss. 363; Overby v. McGee, 63
Amer. Dec. 49.
Affirmed.

SOUTH FLA. R. Co. v. RHOADS.

(Supreme Court of Florida. January 18, 1889.)

1. CARRIERS-EJECTION OF PASSENGER-PLEADING-DECLARATION.

In an action brought by a passenger against a railroad company to recover damages from the company for wrongfully expelling him from the defendant's train, it is not necessary for the declaration to allege that the passenger, at the time of his expulsion, was complying with all the reasonable rules of the company, nor to allege that the passenger was not about to violate any such reasonable rule at the time of his expulsion.

2. CONTRACTS-VALIDITY-PROVINCE OF JURY.

The question as to whether a contract or agreement entered into between the railroad company and a line of steamers plying between Jacksonville and Sanford was entered into in good faith, and was legal and binding, or that such contract constituted an oppressive monopoly, and hence was not legal and binding, is a mixed question of law and fact, and it was properly left to the jury to be passed upon by them.

3. CARRIERS-REGULATIONS-QUESTION OF LAW.

The reasonableness of a rule prescribed by a railroad company for the government of its business is purely a question of law to be decided by the court, and not a question of fact to be passed upon by juries.

4. SAME.

A rule adopted by a railroad company, which inhibited passengers on their trains from wearing the uniform cap of a line of steamers running in opposition to a line of steamers running in connection with the company, was not reasonable, and hence not binding on the public.

5. SAME-EJECTION OF PASSENGERS-PLACE OF EJECTION.

The statute (section 41, c. 1987, Laws Fla.) prohibits the expulsion of a passenger by a railroad company for non-payment of fare at any point other than a usual stopping place, or near some dwelling house. When, however, a passenger wantonly violates any other reasonable rule of a railroad company, the obligation to transport him ceases, and the company may expel him from the train at any convenient and safe point that may be selected by the officer in charge, no more force being used than may be necessary for such purpose. This is a common-law right, and has not been restricted by statute as in cases of non-payment of fare. 6. VERDICT-SETTING ASIDE.

The court charges upon the law of the case, and it is the duty of the jury in their verdict to conform thereto, but if they fail to do so it is the duty of the court to set aside the verdict.

(Syllabus by the Court.)

Appeal from circuit court, Orange county; ELEAZER K. FOSTER, Judge. S. M. Sparkman and S. T. Kingsberry, for appellant. Geo. U. Walker, for appellee.

MITCHELL, J. This cause was tried at the fall term, circuit court, 1885. The jury awarded the plaintiff $5,000 damages. Motion for new trial made and overruled, and the case is before this court upon appeal from the order of the circuit court overruling said motion.

The first error assigned is that the court erred in overruling the defendant's demurrer to the plaintiff's declaration. The declaration alleges that on the 25th day of April, 1885, the plaintiff was received by the defendant to be carried as a passenger on its cars from Sanford to Orlando, Orange county, Fla.; that the defendant did not and would not carry the plaintiff as such passenger as aforesaid, but, on the contrary, without reasonable and lawful excuse therefor, then and there, by its agent and servant, the conductor, and the train hands of its said train, by force and arms ejected plaintiff therefrom, and left him, and proceeded on its said journey; wherefore the plaintiff was injured in his person and feelings, and was compelled to travel