them, as though such conveyance had not been made, under Code, § 4226, providing that every conveyance of lands made with intent to defraud creditors shall be deemed void only as against the persons defrauded.

2. Where, after a conveyance of land by a husband to his wife has been adjudged fraudu lent as to certain creditors of the husband, he moves onto the land with his family, and makes it his home, he is entitled to homestead rights therein, and a sale thereof under such judgment should be enjoined.

Appeal from chancery court, Harrison county; Stone Deavors, Chancellor.

"To be officially reported."

Action by W. T. Harkness and wife against T. P. Dulion and another to establish a homestead right and enjoin an execution sale. From an order refusing to dissolve an injunction, the defendants appeal. Affirmed. W. A. White, for appellants. Harper, for appellees.

Harper &

TERRAL, J. W. T. Harkness became the debtor of T. P. Dulion and of B. Tucei, and while such debtor he made a voluntary conveyance of a lot of land in the city of Biloxi to his wife, Mrs. Sadie Harkness. Thereupon Dulion and Tucei filed their creditors' bill, under section 503, Code 1892, to obtain a decree for their several debts against W. T. Harkness, and to set aside the conveyance of the lot of land by him to his wife as fraudulent and void as to them, and to subject the property so conveyed to the satisfaction of their demands, for all which they had a decree. Thereafter Harkness and wife moved upon and occupied said property as a homestead, and thereupon filed their supplemental bill, in the nature of a bill of review, to have their homestead right established and secured, and obtained an injunction against the sale thereof. Dulion and Tucei moved to dissolve the injunction because the supplemental bill of Harkness and wife was without equity, and asked for damages for the wrongful suing out of said injunction, which, if found to be wrongful, were agreed to be $50. The court overruled the motion to dissolve the injunction against the sale of the lot, and the defendants appeal.

The sole question is whether a debtor, after having a conveyance of his property set aside as fraudulent, may set up a claim of the exemption of said property from sale by reason of his having made it his homestead since the decree avoiding said conveyance. It is well settled at law that property upon which a judgment lien has attached may thereafter be made a homestead, and as such protected from any sale of it under the judgment: Trotter v. Dobbs, 38 Miss. 198; Irwin v. Lewis, 50 Miss. 363; Letchford v. Cary, 52 Miss. 791. It is not perceived why the rule in equity should be different from the rule established in courts of law. In our apprehension of it, the case of Jones v. Hart, 62 Miss. 13, determines the principle of the 31 So.-27

exemption of homesteads from sale under process at law applicable to the like process of equity courts. By the plain letter of section 4226, Code 1892, the only consequence of a voluntary conveyance of property by a debtor is to render it invalid as to his existing creditors, because as to them it is inequitable; but it is not inequitable to allow him to claim any rights he may have in the property to which his title still adheres as to creditors by construction of law. If it is his as to creditors, it is his so as to allow him to claim a homestead exemption in it. In Kuevan v. Specker, 11 Bush, 3,-a case similar to this,-the court said: "These appellees are asking now to subject the property to the payment of their debts, upon the ground that the conveyance to the son was fraudulent and void as to creditors; and, if made liable by the chancellor, it must be for the reason that it is still the property of Theodore Kuevan, the debtor. If his property, himself and wife being still in possession, the creditors will not be allowed to say that we can subject it to satisfy our demands because he is still the owner, and at the same time deny his right to a homestead for the reason that he is not the owner. the property is made liable for Theodore Kuevan's debts for the reason that the conveyance is fraudulent and void, it must be sold subject to the exemption made by law for the benefit of the debtor. A fraudulent conveyance does not enlarge the rights of creditors, but only leaves them to enforce such rights as if no conveyance had been made." To the same effect are Vogler v. Montgomery, 54 Mo. 575; Cox v. Wilder, 2 Dill. 45, Fed. Cas. No. 3,308; Sears v. Hanks, 14 Ohio St. 298, 84 Am. Dec. 378; McFarland v. Goodman, 6 Biss. 111, Fed. Cas. No. 8,789; Crummen v. Bennet, 68 N. C. 494; Wait, Fraud. Conv. § 46; Thomp. Homest. Exemp. § 408. It is a maxim that equity follows the law, and it applies especially to the construction and effect of statutes. Wherefore we are of the opinion that the rule in equity should be the same as at law. Affirmed.

If

LOUISVILLE & N. R. CO. v. McDONALD. (Supreme Court of Mississippi. Feb. 3, 1902.) COURT-JUDGE-BILL OF EXCEPTIONS-EXTENSION OF TIME.

Where a statute authorizes "the court" to extend the time for filing a bill of exceptions,. an order granting such extension may be made by the judge during vacation.

Appeal from circuit court, Harrison coun ty; J. H. Neville, Judge.

"To be officially reported."

Action by William F. McDonald against the Louisville & Nashville Railroad Compa. ny. From a judgment for plaintiff, defendant appeals. Motion to strike from the record the bill of exceptions denied.

This case was tried at the May, 1901, term of the circuit court of Harrison county, where verdict and judgment were had for appellee, and appellant sought and obtained an order of the court for leave to file and prepare a bill of exceptions within 60 days from the adjournment of the court. The court adjourned on the 25th day of May, 1901, and the 60 days expired on July 24th. On the 23d of July the circuit judge, in vacation, granted an order extending the time, allowing appellant 60 days additional in which to file his bill of exceptions. Within the additional time allowed the bill of exceptions was filed, and the case appealed. On the appeal of the case this motion was made by appellee to strike from the record this bill of exceptions for the reason that it was not filed within the 60 days allowed by the court and entered upon its minutes.

Harper & Potter, for the motion. Geo. S. Smith, opposed.

WHITFIELD, C. J. The word "court" is often used interchangeably with the word "judge." See 8 Am. & Eng. Enc. Law (2d Ed.) pp. 22, 23, and notes; Brewster v. Ludekins, 19 Cal. 170. On page 23 it is said in the notes: "A judge in vacation is not the court, but the term 'court' may be interpreted to mean a judge in vacation, where it is necessary to effect the intention of the legislature. Thus, in City of Columbus v. Hydraulic Woolen Mills Co., 33 Ind. 436, it was held that the term 'court' included a judge in vacation, when power to grant restraining orders without notice, in cases of emergency, was granted to the court." This case falls within this principle. Unless the statute meant that the extension to 90 days was always to be made at the very time the order for 60 days was made, it is clear no extension could be had, however great the necessity, in vacation. The meaning of this statute evidently was that when, after 60 days have been once granted, it should appear that an extension was necessary, the extension should then be made by the court or the judge in vacation. So, also, of course, that an extension beyond the 60 to 90 days might, in cases of exceptionally voluminous records, be made at first. Ordinarily, 60 days would be enough. Sometimes, in such cases even, emergencies might arise preventing filing of stenographer's notes within the time, and the judge in vacation might make the order extending to 90 days. We think a sufficient showing is made here. Motion dismissed.

LOUISVILLE & N. R. CO. v. McDONALD. (Supreme Court of Mississippi. Feb. 17, 1902.) RAILROADS-DRAWBRIDGE-FAILURE TO OPEN -LOSS OF VESSEL-EVIDENCEQUESTION FOR JURY.

Where, in an action against a railroad company for failure to open a drawbridge,

whereby a schooner was prevented from passing to a place of safety, and was lost, the captain and two or three persons on board testify that the bridge tender was continually signaled to open the draw by the blowing of a conch shell, which was often used for that purpose, and which could be heard from 1 to 5 miles, according to the state of the atmosphere, aud an equal or greater number of witnesses for defendant testified that they heard no signal, the questions whether the signals were given, and whether they could be heard in the storm then raging, were for the jury.

Appeal from circuit court, Harrison county, "To be officially reported."

Action by William F. McDonald against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harper & Harper and Harper & Potter, for appellant. G. L. Smith, for appellee.

TERRAL, J. The schooner J. J. Clark. with her cargo, was wholly lost in consequence of the defendant's negligence, as was alleged, in a storm, on September 7, 1900. She was on her voyage from New Orleans to the Mississippi coast towns, and in passing through the Rigolets into Lake Borgue she encountered a severe storm, which prevented her from proceeding on her voyage. From the morning to the afternoon of the 7th of September she lay 11⁄2 miles east of the drawbridge of the Louisville & Nashville Railroad Company at the Rigolets, and, fearing the worst, between 4 and 5 o'clock p. m. she lifted anchor, set her jib sail, and made immediately for the drawbridge, which was in the direct path of the wind from her anchorage. She purposed to take shelter in Pearl river. Her captain and two or three other persons on board testified that the guard or tender at the drawbridge was continuously signaled to open the draw from the time of raising her anchor until she came within 100 yards of the bridge, where, in consequence of the omission of defendant's servants to open the draw, she was com pelled to cast anchor; from which anchorage she was afterwards unable to pass through the draw, and was subsequently stranded. and, with her cargo, was last. An equal or greater number of witnesses on the part of defendant testified that they heard no such signals. The signal given by the schooner was the blowing of a conch shell, which had been often used at this bridge, and which could be heard from 12 to 5 miles, according to the state of the atmosphere. The only contention pressed by the railroad company is that it should have had a peremptory instruction directing a verdict in its behalf. The damages ($1,300) found by the jury are admitted to be so reasonable that no complaint is made on that score. The defendant, admitting the signal to open the draw to have been given, insists that the court here should take knowledge that the sound of the conch shell would be unheard or undistinguished in the fearful storm then rag

ing. That, however, was a question plainly submitted to the jury, and one falling within their province to determine. The court, at the instance of the defendant, clearly placed before the jury for its decision (and whose province it was to determine such questions) whether the signal to open the draw was duly given by the schooner, and whether, by reason of the tempest or other cause, the same was unheard. The verdict has settled the issue as to negligence against appellant, and we find no ground in the record to disturb it. Affirmed.

NORMAN et al. v. JACKSON FERTILIZER

CO. (Supreme Court of Mississippi. Feb. 24, 1902.) PARTNERSHIP-DISSOLUTION-ASSUMPTION OF DEBTS-CREDITOR-EXTENSION OF TIME.

1. Where two of four members of a partnership sold out to the other two, who assumed all the debts of the firm, the rights of the holder of a firm note, who knew of the sale and dissolution of the partnership, but did not know the terms, or assent thereto, to collect from the selling partners, was not affected by continuing to deal with the new firm, selling them goods and collecting pay therefor from them until their bankruptcy.

2. Where two of four members of a partnership sold out to the other two, who assumed all the debts of the firm, the holder of a firm note, who knew of the sale and dissolution of the partnership, but did not know or assent to the terms, did not release the selling partners, by agreeing with the new firm to extend the note for another season on condition of their buying the kind of goods he furnished exclusively of him, or by failing to sue until such new firm had become bankrupt.

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

"To be officially reported."

Action by the Jackson Fertilizer Company against R. S. Norman and another.

From

a judgment for plaintiff, defendants appeal. Affirmed.

that upon the trial they would prove payment, the dissolution of the firm of Earnes, Long & Co., the formation of the partnership of Earnes & Dale, and of the assumption by it, for valuable consideration, of the payment of this note of said dissolved firm and of all their other obligations; that Earnes & Dale continued to deal with appellee, and contracted debts due to it; that appellee knew of the dissolution of Earnes, Long & Co., and knew of the conditions thereof, and acquiesced therein; that appellee, for valuable consideration, extended the payment of the note here sued on one year beyond its maturity, and thereby discharged defendants from any liability therein; and that appellee received from Earnes & Dale large sums of money, which should have been applied in discharge of the note sued on.

The evidence in the record shows that the Jackson Fertilizer Company knew of the dissolution of the firm of Earnes, Long & Co., but there is nothing to show that they assented to said dissolution, or even knew of the conditions and terms entered into by the parties relating thereto. In consideration that Earnes & Dale would buy entirely their fertilizers from appellee, which they agreed to do, it agreed that the note here sued on should be extended a season; but no change in the security was made. The agreement between the partners of Earnes, Long & Co., by which two of them took the assets and agreed to pay the debts of the firm, however it may have operated between themselves, did not change their relation to their creditor, the Jackson Fertilizer Company, without its assent thereto given upon a sufficient consideration. As between themselves, Earnes and Dale, were, in effect, principals, and Long and Norman were sureties; but as to appellee they all were severally joint debtors and obligors, and as such were equally bound as principal obligors for the payment of the note. Story, Partn. §

TERRAL, J. In 1898, Earnes, Dale, Norman, and Long were commercial partners under the firm name of Earnes, Long & Co. On the 4th of May, 1898, said firm executed its note for $1,551.25, payable to Jackson Fertilizer Company on the 1st of December, 1898. In January, 1889, said firm was dissolved by consent, and by Norman and Long selling their interest to Earnes and Dale, who continued business under the style of Earnes & Dale, and who received all the assets and assumed all the liabilities of the old firm of Earnes, Long & Co. In 1900, Earnes & Dale were adjudicated bankrupts, and thereafter, this note not being paid, the appellee sued Norman and Long thereon, and had judgment by peremptory instruction in its behalf. Norman and Long pleaded the general issue, and gave notice

Wash. C. C. 98, Fed. Cas. No. 6,123; Id., 4 Wash. C. C. 271, Fed. Cas. No. 6,124. The extension of time by appellee to Earnes & Dale for the payment of this note did not affect the liabilities of Norman and Long. The latter were joint debtors and obligors with Earnes & Dale for the payment of the note, and an extension of it was an advantage to all the parties. Notwithstanding the extension, Norman or Long were at liberty to pay the note at any time. They knew, or might have readily ascertained, whether the note was unpaid or not, and might have paid the same. The extension worked no detriment to them, but was a favor altogether. For the purpose of getting payment out of Earnes & Dale, appellee has delayed to press Norman and Long for payment, and of this the latter cannot complain. for by it they suffered no prejudice. Bedford v. Deakin, 3 E. C. L. 303; Rawson v. Taylor, 30

Ohio St. 389, 27 Am. Rep. 464; Hardware
Co. v. Wells, 90 Tex. 110, 37 S. W. 411, 59
Am. St. Rep. 783.
Affirmed.

LOFTON v. STATE.

that the stick was found in deceased's hands after he fell to the ground. The defendant, in his testimony, accounts for his presence at the place of the homicide, and of his having the gun, by the fact that he was going over to a Mr. Stubblefield's (his employer's) to get some money that had been promised him, and, it being about dark, he carried his gun

MURDER-INSTRUCTIONS-MALICE AFORETHOUGHT-PURPOSE TO KILL

-SELF-DEFENSE.

1. An instruction on a trial for murder that the deliberation necessary to constitute the crime need only exist for an instant before the killing, it being sufficient if the "purpose to kill" is distinctly formed in the mind, is erroneous, since "purpose to kill" does not define the malice aforethought essential in murder, though not ground for reversal where the jury were not misled.

2. Defendant testified that, after a difficulty between him and deceased, the latter advanced upon him with a large stick, in a striking attitude, though warned not to come, whereupon he fired the fatal shot, which claim was contradicted by the state. Defendant showed that his presence at the place of the homicide and his being armed were for a lawful purpose. Held, that an instruction that if defendant, after the difficulty with deceased, armed himself, intending to kill him if necessary, and returned to where defendant was, and renewed the dif ficulty, then he could not plead self-defense, even though deceased advanced upon him with a stick at the time of the shooting, was erroneous, as being based on part of the testimony only, and declaring defendant estopped from the right of self-defense.

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

"To be officially reported."

Frank Lofton was convicted of murder, and appeals. Reversed.

Appellant was indicted at the August, 1901, term of the circuit court of Yazoo county on a charge of the murder of one Peter Stiff, was tried at the September term of said court, and convicted. From the evidence adduced by the state it appears that the defendant and deceased had had some words a short time before the killing, at or near a deadening, about one mile from the place of the homicide; that the defendant left the place of the first difficulty, saying he would see deceased again; that the defendant was next seen in the road, coming from his home, with a gun in his hands; that he hailed deceased, who jumped out of his wagon on the side toward defendant, and that defendant shot deceased, killing him instantly; that deceased had no weapon or stick at the time, and was not making any demonstrations against defendant. On the part of defendant, evidence was introduced to show that, at the deadening where the first difficulty occurred, the deceased had threatened to "get" the defendant; that, at the time of the shooting, deceased was advancing on defendant with a large stick in his hands, with the same drawn on defendant; that defendant warned deceased not to advance on him, but that deceased paid no attention to the warning;

ceased, and did not know who was in the wagon when he met it. On the trial of the case in the court below the following instructions were asked by the state, and granted by the court:

"No. 2. Every willful killing of a human be ing which is not excusable or justifiable by law is either murder or manslaughter,-murder if it be done deliberately, manslaughter if done without any deliberation whatever; and the deliberation necessary to constitute murder need only to exist for an instant before the killing. It is sufficient if the purpose to kill is distinctly formed in the mind, though it be an instant before the fatal shot is fired.

"No. 3. The court instructs the jury, for the state, that if they believe from the evidence, beyond a reasonable doubt, that the defendant accosted deceased in the road at the deadening, and that the defendant and deceased had a difficulty or quarreled there, and that deceased cursed defendant, and that the defendant rode off and said he would see deceased later, or words to that effect, and that the defendant then went to his home and armed himself with his shotgun, intending to use the same to overcome deceased, and kill him, if necessary, in the course of the difficulty, and returned to where ceased was, in the road, and renewed the difficulty, then the defendant cannot plead self-defense; and it is the duty of the jury, if they so believe beyond a reasonable doubt, to convict defendant, even though they may believe that the deceased was advancing on the defendant with a stick at the time he was shot."

de

Defendant was convicted, and sentenced by the court to be hung. From this judgment of the court he appeals, and sets out, among other grounds of error, the granting of the above instructions.

Barnett & Perrin, for appellant. Monroe McClurg, Atty. Gen., for the State.

WHITFIELD, C. J. The second instruction for the state is erroneous in its closing paragraph. "Purpose to kill," merely, is not the equivalent of the malice aforethought necessary to constitute murder. Every one who takes life in self-defense has the "purpose to kill." We would not, however, reverse for this error alone, since it is not probable the jury were misled by this inaccuracy of expression.

But the third instruction for the state is fatally erroneous, in attempting to inform the jury when the defendant would be estopped

to plead self-defense, without including all the elements of fact essential to the estoppel. There is irreconcilable conflict between not only the defendant's testimony and the state's, but (as to the stick) between the other witnesses for defendant and those for the state. If the defendant and his witnesses are to be believed, then the killing was in selfdefense; and the defendant had a right to have instructions presenting his theory of the case, and ought not to have been deprived of that right by a charge, based on part, only, of the testimony, declaring him to be estopped from pleading self-defense. There is no evidence at all in this record as to what his purpose was in procuring the gun, except his own, and that shows a lawful purpose. There is none that he procured it with the intention of using it in a difficulty which he intended to provoke, if necessary to overcome his adversary in that difficulty, and that that purpose and intention he retained up to and through the combat. And yet the charge is framed as if there were facts proven on which the jury might so find, and hence hold him estopped to plead self-defense. This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, as shown by cases cited in the very able brief of counsel for appellant. It can never be proper, save in the few, very, very rare cases where the case is such, on its facts, that a charge can be given embraeing all the elements-not part of them, nor nearly all of them-essential to the estoppel. The old paths are the safe paths. The juries of the country can be safely trusted to find any defendant guilty whose case is really so bad as to estop him to plead self-defense, without resort-dangerous and unwise -to the metaphysical subtleties necessarily involved in the preparation of a proper charge of that sort. Once more we repeat (hoping that "here a little and there a little, line upon line, and precept upon precept" may at last do their work) that if the prosecution will ask few and very simple charges, and trust more to the common sense and sound judgment of the juries of the country, they will expose their circuit judges to far less risk of reversal, secure just as many convictions, and have far-very far-fewer cases reversed. Reversed and remanded.

TENNISON v. STATE. (Supreme Court of Mississippi. Feb. 17, 1902.) CRIMINAL LAW-CHANGE OF VENUE-IMPARTIAL TRIAL-EVIDENCE-SUFFICIENCY.

On a motion for a change of venue on the ground that accused could not secure a fair and impartial trial, a large number of witnesses were examined on both sides. It was shown that, on a denial of bail to the accused, there had been pronounced applause in the court room, and many witnesses testified to having heard expressions that accused ought to be Lung. One witness stated that he thought it

would be almost an impossibility to secure a fair trial, and another testified that, while he had not talked to all the men in the county, every one he had talked to had given it as his opinion that an impartial trial could not be had. On behalf of the state several witnesses testified that they thought 12 men could be secured who would do what they thought right, and one witness testified he believed probably 100 men could be secured. Held, that it was error to refuse a change of venue.

Appeal from circuit court, Lowndes county; E. O. Sykes, Judge.

"To be officially reported."

John P. Tennison was convicted of murder, and he appeals. Reversed.

The evidence in the record shows that appellant and deceased had not been on friendly terms for a number of years prior to the killing, but that the feeling between them had been quite bitter; that on the morning of the homicide deceased was riding on a horse along the street towards his home, and met appellant, who was walking, and had a Winchester rifle in his hand, and upon the meeting of the two men some words passed between them, when appellant shot deceased with the rifle, and after deceased had fallen from his horse appellant walked up to where he was and shot him with a pistol. At the trial of the case in the court below a motion was made by appellant for a change of venue, and a great amount of evidence was introduced, both for the appellant and for the state. The motion was overruled by the court, and appellant was placed on trial, convicted, and sentenced to serve a term of 25 years in the penitentiary. From this judgment of the court defendant appeals, and assigns as error the action of the court in overruling the motion for a change of venue. The opinion contains a further statement of the facts.

Z. P. Landrum and Jas. T. Harrison, for appellant. Monroe McClurg, Atty. Gen., for the State.

WHITFIELD, C. J. On the motion for a change of venue in this case, a large number of witnesses were examined, both on the part of the defendant and the state; and of the witnesses introduced for the defendant it is to be said that they came from nearly all the walks of life, and from every part of the county, and that their testimony, summed up, was of the strongest possible character to show that the appellant could not have had, at that term of the court, a fair and impartial trial in the county. The testimony shows substantially that public sentiment ran very high against appellant, and that this adverse sentiment was prevalent throughout the county, especially in the city of Columbus, where the killing occurred; that so intense was this feeling that lynching was threatened, and for fear of a mob the jailer was notified; that on a preliminary trial, where the prisoner was denied bail, there was a very large attendance, many coming