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First, that the transfer of the property levied on was made with a fraudulent intent by the debtor; and, secondly, that Dibrell & Hill, the claimants, were not purchasers thereof in good faith.

The fraud of the debtor was an independent fact, and any evidence relevant to that fact was competent. Whatever she did at or about the time of the transaction under investigation, calculated in its nature to throw light upon the intent with which she made that transfer, was competent, whether it preceded or succeeded the transfer itself. It is not essential to the competency of such evidence that it should relate to transactions contemporaneous with the one investigated. If they are so closely related in time that the intent that governed in the one may fairly and reasonably be inferred to be the intent that controlled the other, then the one sheds light upon the other, and is therefore a relevant subject of investigation. If Mrs. Pollard, on the night of the day on which she sold the goods levied on to the claimants, made transfers of other portions of her estate for the fraudulent purpose of defeating her creditors, it is for the jury to say whether such was the purpose of the transfer to the claimants. The intervening time was too short for the court to say as matter of law that the one act could not shed light upon the other. For this reason it was error to exclude from the jury the evidence proposed to be introduced touching the transfer of the notes given for the rent of her lands by her agent on the day following the sale of the goods attached.

The plaintiff was permitted by the court to introduce much evidence tending to show that the judgment debtor was insolvent at the time of the sale of the goods attached, or rather that she owed much more than the value of all her visible property subject to execution; but, because they could not prore by direct testimony that Dibrell & Hill knew of the existence of such debts, all the testimony in reference thereto was excluded by the court upon motion of claimants.

Without intending to pass upon the testimony further than is necessary to the determination of the case as presented to us, we are content to say that if, upon the evidence introduced before the jury, it had found a verdict in favor of the plaintiffs, the court would not bave been warranted in setting it aside as not supported by the facts in testimony.

The judgment is reversed, and cause remanded for a new trial.


(Supreme Court of Mississippi. February 25, 1889.) WATERS-SURFACE WATER-DIVERSIOy.

Equity will restrain the owner of land from draining a body of surface water collecting naturally in a depression, principally on complainant's land, but covering also a small part of defendant's land, situated higher than complainant's, and which is used by complainant to float logs to his mill, though the water comes from defendant's land, and complainant has increased the size of the body by constructing a dam on his own land, if the natural collection of the water will be prevented thereby. Appeal from chancery court, Coahoma county; W. R. TRIGG, Chancelior.

There is a large body of water, formed naturally by the surface water collecting in a low place. This body of water has existed for many years. Most of the body is on lands owned by the appellant, J. L. Alcorn, who uses it to float logs to a mill he has erected on its banks. W. R. Sadler's land is higher than Alcorn's, and Alcorn having erected a dam across the outlet of the wa. ter, on his place, which dam is used in winter and open in summer, but when up causes the water to cover a small portion of Sadler's land, Sadler proceeded to dig a canal or ditch in order to drain the large body of water, when Alcorn filed this bill to enjoin Sadler from opening the canal or ditch, alleging that it would destroy the body of water, which was of natural formation; and on

motion of Sadler the injunction was dissolved, from which Alcorn appealed. Appellee's counsel filed suggestions of error in the opinion of the court, to which the court responded.

Cutrer & Cutrer, for appellant. Calhoon & Green and D. A. Scott, for appellee.

CAMPBELL, J. The injunction should not have been dissolved. The evidence tends strongly to show that there is a body of water covering five or six hundred acres of land owned for the most part by Alcorn, and that a small part of it is owned by Sadler; that this existed naturally because of the conforination of the earth in that region; and that the excavation proposed and about to be made by Sadler would drain this water, and destroy the collection. It matters not that the water comes from the surface of adjacent lands owned by Sadler. He may arrest its flow over his land, and divert it before it gets to rest in the reservoir or lake, or whatever the body of water may be called; but after it loses its casual and vagrant character as surface water diffused over his land, and reaches the place of rest, and becomes a body or collection of water, owned chiefly by another, he cannot lawfully drain it, and destroy what belongs to that other, in order to clear of water that part of his own land covered by it. We approve the decision of Schaefer v. Marthaler, 34 Minn. 487, 26 N. W. Rep. 726, and, in the absence of such precedent, would not hesitate to announce a rule so obviously just and barmonious with the rules of law applicable to water.

There are other questions in this case, but we decline to decide them at this stage of the controversy, since the above disposes of this appeal. Reversed and remanded.

RESPONSE TO SUGGESTIONS OF ERROR. PER CURIAM. We have adjudicated nothing in this case, except that the injunction should be retained until further investigation is had, or at least opportunity for it is given. We are satisfied with the legal principle announced in the opinion, and adhere to it, but further than this have not intimated the view that should be taken of the case on a future hearing.


(Supreme Court of Mississippi. February 25, 1889.) JUSTICES OF THE PEACE-JURISDICTION-CONSOLIDATION OF Actions.

Plaintiff filed with a justice three claims against the defendant railroad company for damages for injuries to his stock on three different occasions. The justice docketed three actions, but issued only one writ. Defendant appeared to one action only, and moved to consolidate all the actions, which was denied, and after trial judgment was rendered for plaintiff for $35. Defendant refused to appear to the other actions. A single judgment by default was rendered against it in the other two cases, and an appeal was taken from both judgments as in one case only. Defendant moved to dismiss the action, as involving an amount greater than $150, the maximum jurisdiction of the justice, but the motion was overruled, the actions consolidated, and a trial bad, resulting in a judgment for plaintiff for $125. Held, that no jurisdiction was obtained over defendant except in the first case, if there were three actions; and that, if there were but one, the amount in controversy exceeded the justice's jurisdiction, and that the circuit court acquired no jurisdiction by the appeal as to the actions in which no appearance was entered, and on either theory its judgment was erroneous. Appeal from circuit court, Harrison county; S. H. TERRAL, Judge.

Action by John McCollister against the Louisville & Nashville Railroad Company, before a justice of the peace, to recover for injuries to stock of plaintiff. Judgment for plaintiff, and defendant appealed to the circuit court, where judgment was again rendered for plaintiff, and defendant again appeals.

W. P. & J. B. Harris, for appellant. Elliott Henderson, for appellee.

COOPER, J. The appellee filed with a justice of the peace three several causes of action against the Louisville & Nashville Railroad Company for injury done to his stock on three several occasions. The justice of the peace seems to have docketed the claims as three separate actions, but issued only one subpæna for the defendant. The defendant appeared by counsel in one case, and moved to consolidate the three suits, which motion was overruled, and thereupon, as the record shows, the justice proceeded to try the claim for damages claimed for the killing of a certain heifer, (being one of the claims filed,) and gave judgment in favor of plaintiff. The record, then proceeding, states that, the attorney for the company declining to proceed in the other cases, a judgment by default was rendered against the company for $135,being the amount claimed in both of the other claims. In other words, the justice on the trial of the suit for damages to the heifer rendered judgment in that case for $35, and at the same time, and in the same judgment, rendered a judgment in the other two cases for $135. The aggregate sum thus awarded was $170, and the defendant was permitted and did appeal from it as one judgment. In the circuit court it moved to dismiss the cause for want of jurisdiction in the justice of the peace, because the sum demanded exceeded $150. The court, treating the cases as having been independent ones in the justice's court, overruled the motion, but ordered the cases to be then consol. idated and proceeded with the trial, which resulted in a judgment for plaintiff for $125, from which this appeal is taken.

It is manifest that there were either three suits before the justice of the peace, or one. If there were three, the court had no jurisdiction over the person of the defendant save in one, for there was only one summons issued, and an appearance only in one case. If there was only one suit before the justice, he had no jurisdiction of the subject-matter, for the demand exceeded $150. The justice has not done or failed to do anything, the doing or omitting of which would throw light upon the question whether there was one or three suits in his court. He treated the controversy as a single one for the purposes of process, as three for that of trial, and as one composed of two for the purposes of judgment. Looking through the confusion caused by his blundering, we find that the plaintiff properly began three several suits, as he might rightly do, by filing three separate demands. The confusion arose after this. Applying the process served on the defendant to the suit in which it appeared, (that for damages claimed by reason of the killing of the heifer,) the judgment for $35, awarded by the justice, was within his jurisdiction, and all that followed the entry for that sum was surplusage. No jurisdiction over the person of the defendant had been acquired in the other cases, and the circuit court acquired none by the appeal taken by the defendant. That court should have proceeded to try that case only. We would permit a remittitur to be entered here for all in excess of $25, (that being the sum awarded by the jury for the killing of the heifer,) but for the fact that we could not do justice to the parties in the matter of costs of the lower court. The defendant is not to be charged with the fees of witnesses who testified to the trespasses involved in the other claims, and we cannot, in entering judgment here, protect it against such payment. We can only unravel the tangle in which the controversy has become involved by reversing the judgment, and remanding the cause to the circuit court, in so far as it involves the claim for the injury done to the heifer, for which one suit is brought, to be there tried. And we direct that the papers referring to the other claims (for killing the mare and the cow) be returned to the justice of the peace. These cases will there stand as mere claims filed on which process lias not yet issued, and to be proceeded with as such.

Judgment accordingly.

BAUM et al. v. BURNES et al.

(Supreme Court of Mississippi. March 4, 1889.) VENUE IN CIVIL CASES-CAANGE OP VENUE.

Where suit by attachment is instituted in a county other than that of the defendapt's residence, but where one summoned as garnishee resides, under Code Miss. $ 2418, authorizing such a proceeding, and which does not provide for a change of venue to the county of the defendant's residence, the granting of a change of venue to the latter county on the ground that the suit was not brought in the proper county will not confer jurisdiction upon the court of the latter county. Appeal from circuit court, Smith county; A. G. MAYERS, Judge.

Baum & Co. sued out an attachment against the appellees in the county of Lauderdale. Neither of the appeilees lived in Lauderdale county, and the attachment was returned as to them “Not found,” but it was served on another party as garnishee, who answered that he owed the appellees nothing. At the return term of the attachment, the appellees, Burnes et al., appeared in court, and asked that the attachment proceeding be removed to Smith county, their place of residence and household, which was done. When the case was called in the circuit court of Smith county, Baum & Co. did not appear to prosecute, whereupon the attachment was dismissed, and, a writ of inquiry having been awarded to ascertain the damages to appellees, judgment was rendered on the award made against Baum & Co., from which they appealed.

Woods & Williams, for appellants. A. J. McLaurin, Huddleston & Nichols, and W. J. Jones, for appellees.

ARNOLD, C. J. The proper court of a garnishee's residence has jurisdiction of an attachment against a householder who resides in another county to whom the garnishee is indebted. Smith v. Mulhern, 57 Miss. 591. But where, is in this case, the jurisdiction depends on the indebtedness of the garnishee to the defendant in attachment, if the garnishee owes nothing, and has no effects of the defendant in his hands, or if he so answers, and his answer is not successfully controverted, the suit fails, and should be dismissed for the want of jurisdiction, unless this result is avoided by other process which may be issued under section 2421 of the Code at the instance of the plaintiff in attachment. Smith v. Mulhern, supra; Ellison v. Lewis, 57 Miss. 588.

The answer of a garnishee may be traversed at any time during the term at which it is filed, and, assuming that the jurisdiction of the court in Lauderdale county may have been maintained by the answer of the garnishee being controverted, or by the issuance of other process through which property or debts of the defendants may have been found in that county, Smith v. Mulhern, supra, is conclusive against the change of venue to Smith county.

The change of venue was not made to some convenient county, under section 1502 of the Code, on account of undue influence, prejudice existing in the public mind, or other cause alleged which would have prevented the defendants from obtaining a fair and impartial trial in Lauderdale county, but it was made, under section 1498 of the Code, on the ground that the defendants were sued out of the county of their household and residence. Section 1502 of the Code applies to all civil actions, but section 1498 only to ordinary civil actions, and it requires that, with the exception of local actions, and unless otherwise provided, they shall be brought in the county of the defendant's household and residence, and that, if brought in any other county, the venue may be changed on his application to the county of his household and residence. Suits by attachment are governed by a different law. Under section 2418 of the Code, they may be brought in any county in which the defendant may have property or debts, or in which he may be found, and there is no provision in such case for a change of venue to the county of his household and residence. The only change of venue allowable to the defendant in an attachment suit is that provided by section 1502 of the Code. So that, according to our statutes, when a debtor is sned in an ordinary action, not local or otherwise provided for, his convenience is consulted as to where the suit shall be brought and conducted, but, when he subjects himself to the extraordinary remedy by attachment, the rights of the creditor are placed above the con venience of the debtor. The affidavit and bond required of the attaching creditor are then deemed sufficient safeguards for the protection of the debtor in any county in which he may have property or debts. The change of venue from Lauderdale to Smith county was without authority of law, and the court in the latter county acquired no jurisdiction, and its judgment is void.

The judgment is reversed, and the cause dismissed as to Smith county.

STATE ex rel. RUSSELL 0. BARNES, Comptroller.

(Supreme Court of Florida. January 3, 1889.) 1. STATES AND STATE OFFICERS-SALARIES–ConstiTUTIONAL LAW.

The salary of the superintendent of public instruction has been, since January 1, A. D. 1887, the day on which the constitution framed in 1885 went into effect, $1,500 per annum, as prescribed by the twenty-ninth section of the executive article. There is nothing in the constitution that defers the operation of the section named in its application to such officer to the first Tuesday after the first Monday in January, 1889, the day fixed for the installation of officers chosen at the election in Novem.

ber, 1888. 2. SAME.

The constitution and laws impose upon the comptroller the duty of auditing the accounts of all officers, and provide that no funds can be disbursed by the treas. urer, except upon the order of the comptroller, countersigned by the governor. Where the constitution prescribes the amount of an officer's salary, and the legis. lature has appropriated a sum more than sufficient to pay it and other salaries of the same class, the comptroller neither errs in his judgment nor transcends his authority in refusing

to allow such officer a different amount than that prescribed by the constitution. Franklin Co. v. State, 24 Fla. 55, 3 South. Rep. 471, distinguished. (Syllabus by the Court.)

Mandamus to William D. Barnes, Comptroller.
D. S. Walker, Jr., for relator. R. B. Hilton, for respondent.

RANEY, J. The relator was commissioned in the year 1885 as superintendent of public instruction under the constitution of 1868, as amended in 1871. That instrument fixed the salary of such superintendent at $2,000 per annum. Relator contends that he is entitled to be paid at this rate, and, the comptroller having refused to allow him more than $1,500 per annum for the year 1887, he asks for a mandamus to compel the issuance of a warrant on the state treasurer for the excess,-$500. He contends also that the legislation of 1887 provides for his payment for that year at the rate of $2,000.

The return of the comptroller to the alternative writ states that the present constitution, adopted in 1886, fixes the salary at $1,500, and that relator has been paid this sum for the year 1887; and, further, that while the leg. islature in the act making appropriations for the years 1887 and 1888 has provided a sufficient sum to pay to the relator a salary of $2,000 per annum, it has not been specifically declared by the legislation that he should receive such amount.

The first question to be decided is whether the new constitution fixes the salary of relator. It is contended in his behalf that the salary of $1,500 is prescribed by it for the officer who may be elected under its provisions, and has no application to the present office or its incumbent.

Section 20 of the fourth, or executive, article of the new constitution is as follows: "The governor shall be assisted by administrative officers as follows:

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