evidence, appellant is entitled to recover the amount sued for.

Reversed and remanded.

CALHOON, J., having been of counsel, took no part in the decision of this case.

SHIPP v. McKEE et al. (Supreme Court of Mississippi. Jan. 27, 1902.) INFANTS-CONVEYANCE-DISAFFIRMANCE ON ATTAINING MAJORITY.

A minor 18 years of age, who, having an interest in remainder in land, joined with the life tenant and with her co-tenants in remainder in a conveyance thereof in 1885 to a third person, could disaffirm such conveyance on the life tenant's death in 1899, and was not barred of her remedy by failure to move immediately on attaining her majority.

Appeal from chancery court, Coahoma county; A. McC. Kimbrough, Chancellor. "To be officially reported."

Bill for partition by Mary B. Shipp against Margaret B. McKee and another. Bill dismissed, and plaintiff appeals. Reversed.

II. T. Helm, for appellant. D. A. Scott, for appellees.

TERRAL, J. By the last will and testament of Cyntha R. Shipp, she devised the lands in controversy to John W. Shipp for bis life, and the remainder in fee to Mary B. Shipp and others; one-sixth interest therein being devised to Mary B. Shipp. John W. Shipp, the life tenant, deceased on the 18th day of September, 1899; and soon thereafter Mary B. Shipp brought her bill for partition against Mrs. M. B. McKee, her co-tenant, and McGrath, who claimed a lien upon said land under a trust deed thereon made by Mrs. M. B. McKee. In 1885, while Mary B. Shipp was a minor about 18 years of age, she executed, jointly with John W. Shipp, the life tenant, and with her co-tenants in remainder, a conveyance of said properties (being about 1,336 acres of land) to Toof, McGowan & Co., under whom Mrs. M. B. McKee claims title. This bill is by Miss Shipp to have her onesixth interest in said property allotted to her, and for the recovery of her share of the profits of said property since the 18th of September, 1899. Her bill being dismissed, she appeals.

It is said that appellant is barred of any remedy because she could and should, upon coming to the age of 21 years, have filed her bill to remove the cloud from her title created by the execution of the deed made by her while under said age. Under the authority of Fox v. Coon, 64 Miss. 465, 1 South. 629, such suit would lie, yet the appellant is in no legal default by failing to bring such suit. In Wallace v. Latham, 52 Miss. 297, it is said: "It is well settled that the infant who makes a deed conveying realty during infancy has until such time as will complete the bar of the statute of limitation, after the

removal of disability, to disaffirm the deed, and that bare recognition or silent acquiescence will not be regarded as confirmation of the sale, unless prolonged for the period required to make the statute of limitations a bar, or under circumstances requiring the party to decide and act as to confirmation or disaffirmance." In French v. McAndrew, 61 Miss. 192, it is said: "The effect of the disaffirmance by her [a minor] is to render the conveyance void ab initio by relation, and to entitle her to charge the purchaser for rents during the whole time that he occupied the property, claiming under her deeds. But the defendant by the conveyance acquired the title of Mrs. Hubbard, who was a co-tenant of complainant, and thus became co-tenant with her, and his liabilities and rights are therefore to be tested by the rules governing co-tenants." And so in the case here Mrs. M. B. McKee has acquired the rights of the other co-tenants in remainder with Mary B. Shipp, and is a co-tenant with her in said property; Mary B. Shipp being entitled to a one-sixth interest in said lands and Mrs. McKee to the other five-sixths interest therein. In Hoskins v. Ames, 78 Miss. 986, 29 South. 828, where the appellants were remaindermen under the will of Edmund Hatch, and the life tenant, under a decree of the vice chancery court, had conveyed the property in fee to Welborn, under whom appellees there claimed, the appellants were held not barred of remedy, although the appellees had been in possession more than 40 years, and the appellants had reached majority, and had suffered more than 30 years to pass without making complaint. It was held that the remainder-men were not required to make any move until their right of possession came into existence. Under our statute, a tenant in remainder cannot bring suit for partition, nor would ejectment lie until his right of possession accrued.

Reversed and remanded.

WILLIAMS v. STATE.

(Supreme Court of Mississippi. Jan. 20, 1902.)

CRIMINAL LAW-EVIDENCE-HEARSAY

SUSPICIONS.

1. In a prosecution for arson, where a witness had testified that defendant had offered to hire him to burn the building, evidence that witness had told other persons of such offer was inadmissible.

2. Evidence that a witness suspected that accused would burn the building, and watched for several nights in anticipation thereof, was inadmissible.

Appeal from circuit court, Webster county; W. F. Stevens, Judge.

"To be officially reported."

U. S. Williams was convicted of a crime, and he appeals. Reversed.

Appellant was indicted by the grand jury of Webster county on a charge of burning the storehouse of one S. S. Stevenson, in

a mercantile business. The record shows that all the evidence in the case is circumstantial. There is no evidence showing that appellant was seen in the act of burning the storehouse. George Smith and Will Dixon, witnesses for the state, testified that the defendant, some two or three weeks before the burning of the storehouse, was in the town of West Point, and that while there he sought to employ them to do the deed; that they had told these facts, at the time they occurred, to certain white men. These white men, on the trial of the case, testified, over the objection of defendant, to what the witnesses Smith and Dixon told them. The trial resulted in the conviction of the defendant, and he was sentenced to the penitentiary for the term of three years. From this judgment of the court, defendant appeals. The opinion contains a further statement of the facts.

Roane & Lamb and R. P. & C. B. Williams, for appellant. Monroe McClurg, Atty. Gen., for the State.

TERRAL, J. The conviction of the defendant is sought to be supported, if it may be so supported, by evidence of the burning of the storehouse occupied by the defendant by such apparent means,-the profuse use of oil,-as being a way which George Smith testified the defendant proposed to him to burn said building. And to give cogency to this presumption that the defendant caused the house to be burned because the means that he proposed Smith should use in its burning were apparently used by the incendiary, or to fortify the testimony of Smith upon which the alleged presumption rested, certain hearsay evidence, in repeated instances and by divers persons, was offered by the state's counsel, and admitted by the court over the objection of the defendant. As an illustration of the character of the evidence thus admitted to the jury, George Smith, who swore that the defendant offered to hire him to burn the storehouse, testified, also, that he told Cottrell and several other persons of such proposed burning, and thus placed before the jury his antecedent declarations of his testimony then given; and Cottrell and said other persons were introduced, and testified, in corroboration of Smith, that they had severally seen Smith at the places and times denoted by him in his evidence, and that Smith told them that he was planning to catch defendant in the burning of his storehouse; and these repetitions of his story given in evidence, made to various persons, were presented to the jury as a corroboration of his evidence; and these various persons, for the like purpose of his corroboration, were introduced, and testified circumstantially as to where and when they had severally met Smith when in pursuit of his plan of entrapping the defendant, and also related his declarations as to his busi

tails of his evidence as laid before the jury.

It is a principle of the common law that previous declarations of a witness in conformity with his testimony before the court cannot be given in evidence at all affirmatively; and, while a witness may be impeached by showing that he has made declarations contradictory to his evidence before the court, yet evidence that he has on other occasions made statements similar to what he has testified in the cause is not admissible, except under certain circumstances not existing in this case. 1 Greenl. Ev. § 469; Whart. Cr. Ev. § 492; Com. v. Jenkins, 10 Gray, 485; Robb v. Hackley, 23 Wend. 50; People v. Mead, 50 Mich. 228, 15 N. W. 95; Nichols v. Stewart, 20 Ala. 358. If Smith's evidence given under sanction of his oath before the jury be of doubtful credit, his unsworn statement must be of less credit, and by adding his unsworn statement to his sworn evidence the latter cannot be increased in value. For, if so, the often-repeated declarations of a discredited witness in harmony with his evidence before the jury would render the latter superior to the evidence of a witness of unimpeachable integrity; and such effect could not arise by the mere trick of an unscrupulous witness. think the matter above indicated should have been excluded from the consideration of the jury.

We

2. Another species of evidence admitted to the prejudice of the defendant were certain suspicions indulged against him, and laid with great particularity before the jury. As an instance, take the testimony of Kelly, from which it is plainly deducible that he suspected Williams would burn his storehouse, which was near that of the witness, who was induced to watch the storehouse of defendant for several nights in anticipation of its being burned by the defendant, and who placed his own conduct before the jury as evidence of guilt on the part of the defendant, thus plainly getting to the jury his suspicions in the matter, fortified by his opinion of the culpability of the defendant, so strongly impressed upon him that, with great inconvenience to himself, he watched to see the defendant's crime perpetrated by the actual burning of his storehouse. Certainly the suspicions of a witness, however arising, or his acts due in consequence thereof, should not be put in a scale against the liberty of the accused. We know of no rule of law justifying its admission before the jury.

Reversed and remanded.

HILL v. ALABAMA & V. RY. CO. (Supreme Court of Mississippi. Jan. 20, 1902.) PERSONAL INJURIES-DAMAGES-INADEQUACY -VERDICT OF JURY-CONCLUSIVENESS.

In an action for personal injuries, where the evidence was conflicting as to the extent

of plaintiff's injuries in the first instance, and as to whether subsequent ailments complained of were caused by the injury, and a verdict in plaintiff's favor was not so small as to indicate that it was the product of passion or prejudice, such verdict will not be disturbed for inadequacy of damages.

Appeal from circuit court, Hinds county; Robt. Powell, Judge.

Action by Thomas R. Hill against the Alabama & Vicksburg Railway Company. From a judgment in favor of plaintiff, he appeals. Affirmed.

Green & Green, for appellant. McWillie & Thompson, for appellee.

BOOTHE, Special Justice. This action was instituted for the recovery of damages for personal injuries sustained by the appellant on appellee's train, used for both passengers and freight, after appellant embarked thereon at Jackson for Vicksburg. The testimony shows that the injury was inflicted at Jackson or Bovina, the preponderance of evidence being that it was done during some switching in the yard at Jackson. There was interposed the plea of the general issue and contributory negligence, and at the trial there was a verdict and judgment for appellant for $100, from which judgment he appealed. There are several assignments of error, but the one relied on by appellant is that the damages assessed by the jury are inadequate.

The power and duty of the court, in a proper case, to set aside a judgment and grant a new trial, where the jury have failed to award adequate damages, is well settled by authority and is correct in principle; but the rule laid down in such a case differs but little, if any, from that established for vacating judgments rendered upon the award of excessive damages. In actions sounding in damages, where the law furnished no legal rule of measurement, save the discretion of the jury upon the evidence before them, courts will not disturb the verdict upon the ground of excessive damages, unless it be so flagrantly improper as to evince passion, prejudice, partiality, or corruption in the jury. Upon a mere matter of damages, where different minds might and probably would arrive at different results, and nothing inconsistent with an honest exercise of judgment appears, the verdict should be left as the jury found it. Railroad Co. v. Hurst, 7 George, 660, 74 Am. Dec. 785; Railroad Co. v. Whitfield, 44 Miss. 466, 7 Am. Rep. 699; Railroad Co. v. Caruth, 51 Miss. 77. The case of Moseley v. Jamison, 68 Miss. 336, 8 South. 744. was an action for the recovery of damages for personal injuries sustained by Moseley by reason of his having been dangerously wounded by pistol shots fired without justification by Jamison. There was a verdict in favor of plaintiff for $5. The motion for a new trial was overruled, and judgment was entered in his favor taxing him with costs. From this judgment he appealed. It appear

ed that the plaintiff had not only made out his right to recover, but that the evidence showed further and undisputedly that considerable sums were expended by him for medical attention and supplies, and that for months he was wholly disabled for business, and the sum lost by this disablement was not attempted to be disputed. The jury said he was entitled to recover, but by their verdict he got nothing; the cost taxed against him being much more than the pittance awarded. The court very properly reversed and remanded the case, because the verdict was "utterly inconsistent, unreasonable, and unjust." In doing so, it was said by the court that "it may be conceded that where there is no standard for measuring damages, and no certain rule can be prescribed for the guidance of the jury, the court should not ordinarily grant a new trial, although the damages awarded by the jury may appear manifestly too small. In such cases of incertitude in the measure of damages, the matter must be left to the discretion of the jury; nor should its verdict be disturbed on its finding as to the proper amount to be awarded, except in the cases when it has been plainly produced by prejudice or passion or other improper motive." The testimony in the case at the bar was conflicting, not only as to extent of the injury in the first instance, but as to whether the subsequent ailments of the appellant were the direct result of the injury, or that the injury contributed thereto. The jury had the question of fact before them, and were the sole judges of the truth or falsity of the testimony adduced, and they evidently did not believe that appellant was injured as materially as testified to by him, and that his subsequent mental and physical troubles, if really existing, are all traceable to the injury inflicted long before. It does not appear that the verdict was produced by prejudice or passion or other improper motives. It is unnecessary, in this view of the case, to pass upon the other questions raised by the learned counsel for appellant.

Affirmed.

CALHOON, J., having been of counsel, took no part in the decision of this case.

HASIE v. ALABAMA & V. RY. CO. (Supreme Court of Mississippi. Jan. 20, 1902.) PERSONAL INJURIES - DAMAGES - QUESTION FOR JURY-CONFLICTING EVIDENCE-APPEAL.

Where, in an action for personal injuries, there was a material conflict in the testimony, not only as to the seriousness of the injury at the time it was inflicted, but also as to the direct or proximate cause of the subsequent ailments, the verdict of the jury awarding damages will not be disturbed on an appeal assigning that the damages awarded were inadequate.

Appeal from chancery court, Hinds county; Robt. Powell, Chancellor.

Action by Montague S. Hasie against the Alabama & Vicksburg Railway Company. From a judgment awarding plaintiff damages which he deems inadequate, he appeals. Affirmed.

Green & Green, for appellant. McWillie & Thompson, for appellee.

BOOTHE, Special Justice. This cause was before the court at a former term on appeal from a judgment in favor of the appellee, and was reversed because of erroneous instruction given in its behalf. 28 South. 941. At a subsequent trial in the court below the jury awarded appellant for his personal injuries sustained the sum of $500. From this judgment he appeals, and assigns as the only ground of error that the damages awarded were inadequate. If the undisputed testimony offered by appellant and heard by the jury disclosed that the damages assessed were inadequate, and that the jury had been influenced by prejudice, or passion, or other improper motive, it would be the plain duty of this court to award a new trial. Moseley v. Jamison, 68 Miss. 336, 8 South. 744; Hill v. Railway Co. (Ala.) 31 South. 198. But such is not the case. It appears from the examination of all the testimony that there was a material conflict in the testimony, not only as to the seriousness of the injury at the time it was inflicted, but also as to the direct or proximate cause of the subsequent mental and physical ailments testified to by the appellant and others in his behalf. The jury, under the evidence adduced, would have been warranted in finding a verdict for a larger or a smaller sum, or for the defendant railway company. And there is nothing in the record showing, or tending to show, that the finding of the jury was plainly produced by prejudice or passion or other improper motive; but, on the contrary, it sufficiently appears that the jury has responded to the whole demand made upon it by the law and the evidence. After reaching these conclusions, it is needless to pass upon the other question raised, as to the proper award of the court on a reversal of the judgment of the circuit court.

The judgment of the court below is affirmed.

CALHOON, J., having been of counsel, took no part in the decision of this case.

BENSON v. STATE. (Supreme Court of Mississippi. Jan. 13, 1902.) WITNESSES-CREDIBILITY-GENERAL REPUTA

TION-CORROBORATION.

1. Where a witness had testified that the general reputation of a third person for truth and veracity was bad, it was improper to permit him to testify that if the third person were in a position to see the thing he had been testifying about, and was corroborated by circumstances, witness would believe him; the in

quiry not being as to what certain circumstances might prove, but whether the witness' own statement was deserving of credit.

2. Where a witness had testified that the general reputation of a third person for truth and veracity was bad, it was improper to permit him to testify that he would be more likely to believe a person in whom he had no confidence if he was testifying as to a matter in which he had no personal interest.

Appeal from circuit court, Franklin county; Jeff Truly, Judge.

"To be officially reported."

One Benson was convicted of burglary, and appeals. Reversed.

Appellant was indicted at the April, 1900, term of the circuit court of Franklin county, on the charge of breaking into the court house at Meadville and taking $4,000 from the safe of the county treasury. The evidence in the case shows that appellant was at the time of the burglary, and had been for a number of years prior, engaged in the business of repairing stoves, and that it was his custom to travel through the country in a buggy, taking with him certain tools, among which were a brace and bit, used for the purpose of drilling holes through iron, a cold-chisel, and some other tools. The evidence further shows that Benson was a stranger in the county, and that he arrived at Meadville on the morning of April 2, 1900, and that the burglary took place that night. Some tools were found on the morning after the robbery,-among them being a brace and bit, and an old lantern with some cloth over it, and some other tools,-but they were not identified as those of Benson. At the trial of the case in the court below, Albert Bunkley, a white man, and Alex Weathersby, a negro, both of whom were convicts, testified that they had seen Benson about the court house or jail several days before the robbery; that they saw him on the night of the robbery from the cell, upstairs, of the jail. Bunkley testified that he thought that one of the men he saw at the court house that night was Benson. Havard, a witness for the state, testified that he had known Bunkley since he was a boy, and that his reputation for truth and veracity was not good. In examining Havard, the district attorney asked him the following questions: "Q. If you knew he was in a position to see a thing that he has been testifying about, and was corroborated by other witnesses, would you believe him? A. There has been a time when I would not hardly believe him, but I reckon I would have to believe him under those circumstances. Q. Would you not be more likely to believe any man that you did not have any confidence in, if he was testifying about a matter that he had no interest in the world? A. Under some circumstances I would, and some I would not. He might have some interest, and we might not know it. Q. Presuming he had no interest in it. a man would be more likely to tell the truth than in a matter in which he was interested?

A. Yes, sir; I think so." To these questions defendant objected, his objections were overruled, and he excepted. The trial resulted in the conviction of defendant, and he was sentenced to the state penitentiary for a term of five years. From this judgment of the court, defendant appeals.

Brame & Brame, for appellant, cite: Rudsdill v. Singerland, 18 Minn. 380 (Gil. 342); Moulton v. State, 88 Ala. 116, 6 South. 758, 6 L. R. A. 301; Kennedy v. Upshaw, 64 Tex. 411; Teese v. Huntington, 23 How. 2, 16 L. Ed. 479; 5 Notes U. S. Rep. p. 960.

WHITFIELD, C. J. The court erred in permitting the witness Havard to answer the questions propounded to him on crossexamination as to whether he would believe Bunkley if he had been in a position to see, or if he was not interested. The very answer made shows clearly the impropriety of the question. The witness answered: "There has been a time when I would not hardly believe him, but I reckon I would have to believe him under those circumstances." The defendant was endeavoring to impeach Bunkley as unworthy of belief, by showing him to be a man whose reputation for veracity was bad. The inquiry was addressed to the end of ascertaining whether he was a man whose statement as to a fact was worthy of belief, in itself considered,-whether his statement was worthy of belief because of his truthful character, not because conclusive facts shown by other evidence showed his statement might be true, as that the defendant could have been seen from the position Bunkley said he stood in. The

* jury might in a particular case have certain circumstances proven, conclusive that a particular fact might be as stated, so that they would believe that particular fact to be established, and yet wholly disbelieve the witness' statement that he knew of the fact. They would find the existence of the fact in such case from the irrefragable circumstances shown, although they might be thoroughly satisfied that the witness' statement that he knew of the fact was wholly false, and that the statement of the witness was therefore unworthy of belief. It is perfectly obvious, therefore, that when the object of the investigation is to ascertain whether the witness' character for veracity is such that he could not be believed, and that the defendant could not be convicted if his statement was the only evidence of guilt, it is not permissible to bolster up the witness' general reputation for veracity by showing that such reputation is good, because, from the other facts independently proven, the fact he spoke to might have been as he stated it. That fact might in truth be as he stated it, and yet his statement that he knew it to be so, a lie; and whether his statement that he did know it was believable, judging from his reputation, would not at all be depend

But

ent on the fact being as he stated it to be. In the last analysis, under this line of inquiry, the jury would be authorized to believe the witness' statement that he knew the fact to be so, not because the statement was true, as being the truthful statement of a fact within the knowledge of the witness, but because there were other facts, shown by other testimony, showing the particular fact might be as the witness testified. obviously, in such case, that fact might be as stated, and yet the witness' statement that he knew it to be so, a lie, and hence he unworthy of belief. And the thing being inquired about was whether he was a truthful witness. The same observations apply to the question as to interest. Undoubtedly, any man is more likely to be believed where he is not interested. That is true of the most truthful witness. But the fact that he is interested in a particular case would not show that he told the truth where he was not interested, always. A witness' reputation for veracity might be so bad that he would not be believed, interested or disinterested. And it is that general reputation which was here being inquired about. plain effect of the course pursued here was to make the jury believe the witness' statement because the witness Havard said that, in his opinion, the witness' statement ought to be believed,-not because he told the truth, but because the fact might have been as he stated it if he had been in a position to know it. Because he might have seen the defendant from the place where he said he saw him, therefore he did see him, since he said he did, is the logic,-a perfect non sequitur. Whether in fact he did see him depended on the truthfulness of his statement. Whether he was truthful was the inquiry. It was the jury's opinion as to whether he was believable, not that of the witness, that was called for, and the reasons above set forth show that the jury were given a wrong standard. As the conviction here rested materially on Bunkley's testimony, it cannot be confidently said that the result would not have been different with this testimony excluded. See authorities in brief of learned counsel for appellant. Reversed and remanded.

The

JONES v. MEMPHIS & A. C. PACKET CO. (Supreme Court of Mississippi. Jan. 27, 1902.) CARRIERS-SHIPMENT OF ANIMALS-NEGLIGENCE EVIDENCE OF PEDIGREE.

1. The pedigree of a jack, in action for negligently causing his death, may be proved by reputation.

2. An instruction, in an action against a carrier for injuries inflicted on a jack in loading him on a steamboat, that defendant is not liable for the injuries produced by his stubbornness or obstinacy in resisting the efforts to load him, if its agents did not mistreat him, and used only such force as was necessary to load him, and exercised ordinary care in loading