286) regulates the whole subject. The manifest policy of the act was to prevent the embarrassment of counties by the erection of buildings more costly than their necessities require, and the incurring of liabilities beyond their ability to pay. The first step to be taken by the county court before proceeding to the erection of county building is to ascertain that sufficient funds are in the treasury unappropriated, or that the circumstances of the county otherwise permit; and then to make an order appropriating a certain sum for the purpose, which shall cover the maximum cost; and the contract price cannot exceed the amount appropriated. This provision was evidently suggested by the universal experience that the cost of public works generally exceeds the estimate; and there would be no safeguards for the funds or credit of a county if the public buildings were let out to be built by contract, and the price left to be determined according to the value of the work after its completion.

This law is the warrant of attorney to the county court. All its provisions are plain; and the contractor, before he undertakes the work, as he deals with an agent whose powers and duties are prescribed, ought to see that the agent is pursuing its authority; for the agent cannot bind the county except as it is commanded or permitted to do. If the agent of a private person produced to a builder a power of attorney authorizing him to contract for building a house of certain dimensions, and the cost not to exceed a given sum, and in the face of his authority should contract for a house of a different kind at a greater cost, no one would pretend that the contract would bind the principal unless he subsequently ratified it; and it is only the application of this familiar rule that we apply to this case. If any effect is to be given to the law at all, its plain directions must be followed, and to allow a manifest departure from them would not only be a violation of an established rule that governs the relation of principal and agent, but would remove all the restrictions which the law has imposed upon the county court in contracting debts to be paid by the county. The petition in this case does not aver a contract of any kind with the county court, but the plaintiff seeks to recover upon a quantum meruit. In our opinion, the county is not liable upon an Implied promise. The acceptance of the building by the county court did not help the plaintiff, for the ratification must come from the principal. Delafield v. Illinois, 2 Hill, 175." See specially note to Gilman v. Contra Costa Co., 68 Am. Dec. 292, 293. Section 344 of the Code of 1892 is express in its provision that "a board of supervisors shall not empower or authorize any one or more members of such board or other person to let or make contracts for the building or erection of public works of any description, or for working public roads, in vacation or during

the recess of said board; but all such contracts shall be made and approved by said board in open session." It is plain from this that a county cannot, as to the subject-matters covered by section 344, be bound by an implied contract. The very purpose of this statute was to cut off entirely any possibility of fraudulent claims for extra work done and materials furnished, and it limits the board of supervisors to express contracts in respect to the subject-matters embraced in the statute, made in the mode pointed out. We think, as we have heretofore held in Board v. Patrick, supra, and Dixon v. Greene Co., 76 Miss. 794, 25 South. 665, that a board may, by a new contract, or an amendment of its original contract, or by a ratification (all of which must be by acts of the board in open session, spread upon its minutes), bind the county to pay in each of the cases named. And parties contracting with the counties are charged with knowledge of this statute, and, unless they pursue the terms of the contracts made in pursuance of section 344, or, in case of extra work or labor for the board, amend the contract or ratify one informally made, in accordance with section 344, no recovery can be had against the county. The manifest purpose of the statute was that the county should be bound by the contract of the board, as a board, in open session, and spread upon its minutes. The appellant here has not pursued the course marked out in Board v. Patrick, and, in the absence of any amendment to its original contract, or ratification of the one informally made, has sued at law, and must, of course, fail, as held in that case, which controls here.

Affirmed.

BROWN et al. v. SHARP et al. (Supreme Court of Mississippi. March 31, 1902.)

MUNICIPAL CORPORATIONS-TAXATION-CHAR

TERS-AMENDMENT-TAX SALES-VALIDITY.

Code 1892, c. 93, § 3039, provides that a corporation which has not come under the provisions of that chapter may amend its charter by certain proceedings, but requires the amendments to be consistent with said chapter. Section 3022, which is included in the chapter, requires sales of realty for municipal taxes to be at the time of such sales by county and state. Held, that tax sales made by a municipality under an amendment made by virtue of section 3039, but contrary to section 3022, were void.

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

Proceedings between Mrs. S. M. Brown and others against J. B. Sharp and others to confirm a tax title. From a decree pro confesso, defendants appeal. Reversed.

The city of Meridian elected not to come under the provisions of chapter 93 of the Code of 1892, on “Municipalities." Section 3039 of said Code provides that such munic

ipalities may amend their charters if the attorney general be of opinion that the proposed amendments are consistent with the constitution and laws of this state and the United States. Section 3022 of said Code provides that sales of land for the nonpay. ment of municipal taxes shall be at the same time and in the same manner as provided by law for the sales of like property for the nonpayment of state and county taxes, which is the first Monday of March of each year. In August, 1893, the city of Meridian amended its charter, acting under section 3039, and therein changed the time for the sale of lands for the nonpayment of municipal taxes to the fourth Monday of February of each year. Appellees, who were complainants in the court below, filed the bill in this case against appellants, defendants there, to confirm their tax title to a certain lot described in the bill in Meridian. The bill avers, and the deed, which was made an exhibit to the bill, shows, that the sale for taxes under which complainants claim title was made on the 22d day of February, 1897. The defendants did not appear or answer in the court below, and a pro confesso decree was rendered against them, and afterwards a final decree confirming complainants' tax title to the lot was rendered. Defendants appealed.

Neville & Wilbourne, for appellants. F. V. Brahan, for appellees.

CALHOON, J. The bill in this case, which is one to confirm a tax title to land in the city of Meridian, bought at a city tax sale, shows on its face that the sale was not on the day prescribed by law. The title is therefore void, as has just been decided by this court in O'Flinn v. McInnis, 31 South. 584. It follows that the pro confesso taken amounted to nothing, and the case is reversed, and remanded to be proceeded with for refund of taxes paid by complainants as directed in the case of O'Flinn v. McInnis.

KAUFMAN v. SIMON et al. (Supreme Court of Mississippi. March 31, 1902.)

ASSIGNMENTS FOR BENEFIT OF CREDITORSATTACHMENT EVIDENCE TRIAL STIPULATIONS BY COUNSEL SETTLEMENT-CONSENTING CREDITORS-REVOCATION-DUTIES OF ASSIGNEE FILING SCHEDULES BONA FIDES.

1. Testimony as to the contents of a letter was properly excluded; the witness having the letter, and not offering to produce it.

2. In attachment by a creditor of W., who had assigned for the benefit of creditors, it was agreed in writing that plaintiffs offered in evidence an assignment, or what purported to be an assignment, executed by W. to E., signed, "W., per B., Agt.," and that the goods described therein "were delivered by W. to E., who took possession under Exhibit A," which was the assignment. Held that, in view of this agreement, the court would not consider the

objection that it was error to admit the assignment in evidence because the authority of the agent was not shown.

3. Where a debtor in good faith assigned for the benefit of creditors, and a creditor consented to a sale by the assignee, and to a distribution thereunder, he could not, on subsequently attaching the property, interpose the objection that the assignment was void because the assignee filed no petition in chancery, gave no bond, and filed no schedules as required by Code 1892, c. 8.

4. An assignment for creditors containing no preferences was not affected by Code 1892, § 124, declaring that, unless certain schedules were filed by the assignor, the assignment was void as to all preferences contained in it.

Appeal from circuit court, Washington county; Thos. R. Baird, Special Judge.

Attachment proceedings by H. D. Simon & Co. against W. Shaphran, in which Joseph Kaufman filed a claimant's affidavit. From a judgment for plaintiffs, said Kaufman appeals. Reversed.

In April, 1901, W. Shaphran, who was a merchant in Greenville, Miss., made a general assignment of all his property to one E. Frankel, assignee, for the benefit of his creditors, among whom were appellees, H. D. Simon & Co. The deed of assignment was executed by B. Shaphran, as agent for W. Shaphran. The property assigned was worth more than $1,000. The assignee took immediate possession of the property, and notified all the creditors, including appellees, that he could sell the assigned property for a sum sufficient to pay 25 cents on the dollar ou the debts of the assignor. He received answers from them all accepting the proposition, and thereupon sold the property to Joseph Kaufman for $2,500 cash. Kaufman paid him the purchase price, and he distributed it among the creditors; each receiving his proportionate share of the money. Appellees received a check from the assignee for their part, and cashed it, but afterwards sent the assignee their own check for the amount received. Several days after the sale to Kaufman, appellees sued out a writ of attachment against W. Shaphran, and had it levied on the property purchased by Kaufman from the assignee. Kaufman filed claimant's affidavit and bond, and claimed the property as his own. In the justice of the peace court there was a judgment against him, and he appealed to the circuit court, where the case was tried de novo, and the court gave a peremptory instruction to the jury to find for plaintiffs. From a verdict and judgment in accordance therewith, Kaufman appealed. The opinion contains a further statement of the facts.

Thomas & Rose, for appellant. Shields & Boddie, for appellee.

CALHOON, J. We think the court erred in giving a peremptory instruction for the plaintiff's below. It is agreed in writing that the appellees recovered a judgment against W. Shaphran on May 8, 1901, and that on

trial of the claimant's issue on the claim of property by appellant, Kaufman, the plaintiffs, who were judgment creditors of W. Shaphran, offered in evidence an "assignment, or what purports to be an assignment, executed by W. Shaphran to E. Frankel, dated the 22d day of April, 1901, signed, 'W. Shaphran, per B. S., Agt.' It is further agreed that this was a general assignment, and that the assignee filed no petition in chancery, gave no bond, and filed no schedules, as required by chapter 8, Code 1892. It is further admitted that the goods described in this assignment "were delivered by W. Shaphran to E. Frankel, who took possession of the same under Exhibit A [which is the assignment], and that he sold and delivered the same to Joseph Kaufman, the claimant in this case, who took possession of the same, and was in possession prior to the issuance of any attachment in this case." The case was commenced by attachment, but the grounds of attachment do not appear. It may be said here that there is no intimation of fraud anywhere in this record on the part of W. Shaphran, the grantor in the assignment, or E. Frankel, the assignee, or Joseph Kaufman, the claimant, to whom Frankel conveyed and delivered the property assigned. It is established, without contradiction, that Kaufman paid the assignee a fair price for the goods, and bought in good faith, and remained in possession undisturbed for about 16 days, and that the assignee under this general assignment, without preferences, made proper pro rata distribution to every creditor, and among them to H. D. Simon & Co., the appellees. H. D. Simon & Co. cashed the draft sent them by the assignee, kept the money a few days, reconsidered, and mailed to Frankel, the assignee, their own draft for the money. All these facts are undisputed. Frankel, as a witness, testified that before he sold to Kaufman he had written to all the creditors for permission to make this sale, to save expense and delay, and that all of them, including appellees, had answered, agreeing that he should make it; but as he had this letter from H. D. Simon & Co., and did not produce it, the court, very properly, on plaintiffs' motion, excluded his testimony as to their letter of agreement.

It is

There appears no objection in the court below to the assignment, as evidence. now here suggested that it is not competent evidence, because of the signature to it, “W. Shaphran, per B. S., Agt.;" the authority of "B. S., Agt.," not being shown. This might prevail but for the agreement that the goods "were delivered by W. Shaphran to E. Frankel, who took possession of the same under Exhibit A." With this agreement in, we cannot consider the objection on this point. The real contention is that the assignment, and sale under it by the assignee, were absolutely void, because the assignee did not conform to the directions of Code, § 117.

This might avail if the attachment had intervened between the execution of the assignment and the sale and delivery of the possession of the goods by the assignee to Kaufman. But the attachment was not interposed until two weeks or more thereafter. Shaphran, in good faith, conveyed the property to Frankel for the benefit of his creditors, without preference, and put him in possession; and he, in good faith, sold and delivered the possession of them to Kaufman, who bought and took possession for a fair price in good faith. This is enough. Baldwin v. Flash, 58 Miss. 593. Appellees can derive no comfort from Code, § 124, which declares a general assignment, where certain schedules are not filed, "void as to all preferences contained in it." This assignment contains no preferences, and the argument would be that it is therefore not void, and that, if such had been the intent in section 117, the legislature would have said so. Reversed and remanded.

BUFORD v. STATE.

(Supreme Court of Alabama. Feb. 13, 1902.) ASSAULT WITH INTENT TO MURDER-CONSPIRACY-INSTRUCTIONS-EVIDENCE

1. Where there is evidence in a prosecution for assault with intent to murder that affords an inference that defendant went to the place where the assault was committed by another, and was present for the purpose of aiding and encouraging the latter to make the assault, it is not error to refuse the general affirmative charge.

2. A charge, in a prosecution for assault with intent to murder, that defendant cannot be convicted unless he was a party to a conspiracy to make the assault, and was present and abetted another in making the assault, is erroneous, as a mere showing of his participation in the conspiracy is sufficient to authorize his conviction, without proof of participation.

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Joe Buford was convicted of assault with intent to murder, and he appeals. Affirmed. The appellant in this case moved for a severance, which was granted. On the trial of the cause the state introduced evidence tending to show that the assault charged was committed by Dock Legrand shooting at Knowles with a pistol; that at the time of the shooting the defendant called Legrand, and that he and Legrand walked to where Knowles was, after Knowles had had a fuss with the wife of Legrand. The evidence showed that Buford did not shoot at or make an assault upon Knowles. The evidence for the defendant tended to show that there was no agreement, understanding, or conspiracy between him and Legrand for shooting said Knowles. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If the jury believe the evidence in the case beyond a reasonable doubt, you will

find the defendant not guilty." (2) "The court charges the jury that, before you can convict the defendant, you must believe from the evidence in the case beyond a reasonable doubt, and to a moral certainty, that the defendant Joe Buford had conspired with the defendant Dock Legrand to commit the assault, and that he went with Dock Legrand to the scene of the trouble for the purpose of aiding, encouraging, and abetting him in the commission of the assault, and that he was there, ready and willing to aid, encourage, and abet said Dock Legrand in the commission of the assault at the time the assault was committed." The defendant was convicted of the offense charged, and sentenced to the penitentiary for 10 years. From this judgment the present appeal is prosecuted.

E. R. Brannen, for appellant. Chas. G. Brown, Atty. Gen., for the State.

SHARPE, J. In the record there is evidence sufficient at least to afford an inference that defendant went to the place where Legrand shot at Knowles, and was there present at the shooting, for the purpose of aiding, or by his presence encouraging, Legrand to attack Knowles. To determine whether such was the true inference was for the jury, and for the court to have given the general affirmative charge requested by the defendant would have been an invasion of the jury's province. Charge 2 was properly refused. To fix criminal responsibility on defendant, it was not necessary for the jury to find both that he conspired to commit the offense before coming to the place of its commission and that he actually aided Legrand in committing it, as is assumed in that charge. Amos v. State, 83 Ala. 1, 3 South. 749, 3 Am. St. Rep. 682; Raiford v. State, 59 Ala. 106. Affirmed.

WIKLE v. JOHNSON LABORATORIES. (Supreme Court of Alabama. Jan. 16, 1902.) ACTION FOR PRICE OF GOODS-PLEADING-DEMURRER-ISSUES-EVIDENCE-FRAUD-WRIT

TEN CONTRACTS-VARIATION BY PAROL.

1. Under Code, § 3303, providing that no demurrer can be allowed but to matter of substance, which the party demurring specifies, and that no objection can be taken or allowed which is not distinctly stated in the demurrer, a demurrer not specifying the grounds of the objection is properly overruled, whether the pleading demurred to, abstractly considered, is good or bad.

2. In an action to recover for goods sold and delivered, defendant alleged that the goods in question were purchased under a special contract whereby plaintiff agreed to advertise the goods at its own expense until they were sold by defendant, and that plaintiff failed to fulfill this contract so that defendant was not able to sell the goods. The replication alleged that plaintiff procured the publishing of an advertisement in a local newspaper, and continued the same until the publisher discontinued it because defendant represented to him that plain

tiff was a fraud, and that plaintiff renewed the advertisement as soon as it had notice that it had been discontinued. Defendant demurred generally to the replication, and, after the overruling of the demurrer, joined issue upon the replication. Held, that such joinder of issue was voluntary, rendering the allegations of the replication material, even though not inherently so, making evidence in support of the facts alleged admissible, and entitling plaintiff to recover if the evidence was sufficient to establish the averments of the replication.

3. Testimony by the publisher of a newspaper located in the town where defendant lived that plaintiff contracted with him for the continuous publication of an advertisement of the goods sold to defendant, to which defendant's name was to be attached; that the advertisement ran in the paper until it was discontinued because defendant stated to witness that he believed plaintiff to be a fraud; and that the advertisement was continued upon plaintiff's learning of its discontinuance, and paying witness the bill which had accrued up to that time, -was sufficient to support a finding in favor of plaintiff upon the replication.

4. In an action for the sale of goods, where it appeared that defendant had signed a written order for the goods, and that such order contained no stipulation that all the goods should be shipped at the same time, evidence of the shipment by plaintiff and receipt by defendant of the goods ordered, in separate installments, at two different times, was admissible.

5. In an action for goods sold and delivered, where the contract of sale contained a stipulation that the goods were to be advertised by plaintiff until sold by defendant, parol evidence as to the meaning of the words "to be advertised until sold" was properly excluded.

6. It appearing that the transaction was an absolute purchase, evidence as to whether or not defendant had sold the goods was immaterial.

7. Evidence that defendant had paid no part of the purchase price was not objectionable.

8. In an action for goods sold and delivered, defendant testified that he told plaintiff's agent that he would take $50 worth of plaintiff's goods, and that afterwards plaintiff's agent came to defendant's store with the order filled out, except the column showing the amount that would be due from defendant to plaintiff, and that, the agent being anxious to catch a train, defendant signed the order, thinking it was for $50 worth of goods, instead of $105, as it in fact was, and that upon discovering this fact he immediately wrote to plaintiff, telling it to send but half the order, which plaintiff declined to do. Held insuflicient to show fraud in the sale.

Appeal from city court of Anniston; Jas. W. Lapsley, Judge.

Action by the Johnson Laboratories against J. L. Wikle. From a judgment in favor of plaintiff, defendant appeals. Aflirmed.

This was an action brought by the Johnson Laboratories, a corporation, against the ap pellant, J. L. Wikle, and sought to recover an amount due by an account for goods and merchandise sold by the plaintiff to the defendant. The defendant pleaded the general issue and two special pleas. The second plea was as follows: "(2) For further plea the defendant says that the goods for which said suit is brought were purchased under a special contract, in which said plaintiffs agreed and contracted with defendant that the plaintiffs would advertise said goods at their own expense until said goods were sold by de

fendant. And defendant says that the said plaintiffs failed to so advertise said goods, wherefore this defendant has not been able to sell said goods, and upon the plaintiffs' said failure this defendant notified the said plaintiffs of their said failure, and offered to return said goods to plaintiffs. Wherefore defendant avers that he has suffered damages by reason of plaintiffs' said failure to comply with said contract in the sum of one hundred and twenty-five dollars, which defendant offers to recoup against the demand of the plaintiffs, and asks judgment for the excess. The third plea was substantially the same as the second. The plaintiff filed the following replication to the second and third pleas. "The plaintiff, for replication to defendant's pleas Nos. 2 and 3, says that it advertised the goods sold to defendant in accordance with the contract between it and defendant, and while so advertising said goods the defendant himself caused the said advertisement to be stopped, and the same was stopped on account of the defendant representing to the publisher of said advertisement that plaintiff was a fraud. Plaintiff further avers that, as soon as it had notice that said advertisement had been discontinued, it renewed the same, and kept the same in a newspaper in Anniston, Ala., until the defendant breached his said contract further by refusing to pay for same when due." The defendant demurred to the replication to the second and third pleas, but assigned no specific grounds of demurrer; the ground of demurrer being that the replication was no answer to the plea. This demurrer was overruled, and issue was joined on the pleading. On the trial of the case, it was shown that the plaintiff had sold to the defendant, who was a druggist, some medicines, and that for the purchase price of these medicines this suit was brought. An itemized statement of the account between the plaintiff and the defendant, and the amount due from the defendant, were introduced in evidence. It was further shown by the evidence for the plaintiff that on January 10, 1899, the defendant signed an order, addressed to the plaintiff, for the goods for the purchase price of which the present suit was brought. It was stipulated in this order that, in consideration of being advertised as one of the plaintiff's agents, the plaintiff would ship the goods as shown in the order. There was also the following statement in the order: "Goods exchangeable, and above goods to be advertised until sold." The medicines ordered by the defendant amounted to $103.50. The plaintiff's evidence tended to show that, after giving this order by the defendant, the goods were shipped to him in two installments. One lot of goods, amounting to $69, was shipped a few days after the order was received, and the other goods, amounting to $34.50, where shipped on February 9, 1899. Upon the plaintiff introducing in evidence a statement of the account with the defend

The

ant, the defendant objected to that part of the account which bore the date of February 9th upon the ground that the order did not provide for two shipments of the goods. court overruled the objection, and the defendant duly excepted. The plaintiff introduced as a witness M. A. Smith, who stated that he was the publisher of the Hot Blast, a daily newspaper published in Anniston, Ala., the city in which the defendant did business; that he advertised in the newspaper for the plaintiff, and that this advertising was done under a contract which was made with the plaintiff's agent in January, 1899, and the contract provided for the continuous advertisement in said newspaper; and that it was also provided that the defendant's name was to be attached to the advertisement. This witness further testified that the advertisement ran in his paper a short time, and was then discontinued for six weeks; that the defendant came to the witness, and stated that he had found that he had not been able to find what was the plaintiff's commercial standing, and that he believed that the plaintiff was a fraud. This witness further testified that it was after this conversation with the defendant that he discontinued the advertisement, and presented his bill to the plaintiff therefor; that, upon the plaintiff subsequently paying the bill, the advertisement was continued for six months. The defendant objected to the question asked this witness, which called for the conversation had between him and the defendant in which the defendant stated that he believed the plaintiff was a fraud. The court overruled each of these objections, and to each of these rulings the defendant separately excepted. The defendant, as a witness in his own behalf, testified that, when the plaintiff's agent came to him to solicit his order, he told said agent that he did not want to buy a large order, but finally told him that he would take $50 worth of the plaintiff's goods; that, after this statement, plaintiff's agent came to the defendant's store with the order filled out, except the column showing the amount that would be due from the defendant to the plaintiff; that the plaintiff's agent was anxious to catch the train, and the defendant signed said order, thinking it was for $50 worth of the plaintiff's goods, as he did not wish to detain the agent, or prevent him from catching the train; that on the next day, when he figured out the amount of the order, and discovered that it was for $105, he immediately wrote to the plaintiff, and told it not to send the order, but to cut it in half, but that the plaintiff declined to do this. During the examination of the defendant as a witness, he was asked the following question: "What was the agreement cr understanding between yourself and plaintiff's agent, who took your order, that the words indorsed on the order, "To be advertised until sold,' meant?" The plaintiff objected to this question, the court sustained the objection,