Opinion of the court.

me to the person who was induced to part with six thousand dollars as a loan to me, if that person neither stipulates for nor receives for his loan more than the legal rate of interest. Nor does it make any difference that he has full knowledge that the cost to me of securing the loan is so great as that supposed. I may be willing to lend money on the guaranty of an individual. If one desiring to borrow pays that individual even an exorbitant price for his guaranty, and thereby gets my money at a rate of interest to be received by me within the bounds of the statute, there is no usury. I may be willing to lend money on the faith of the representation of another that he thinks the transaction a safe one, and if he charges a borrower for the service rendered him in recommending to me the loan, that is their matter and in no manner affects my loan, if I am not to get more than the law allows for the use of money. The application of these principles to the facts of this case presents the loan as without any semblance

of usury.

The N. E. M. S. Co. had money to lend on mortgages of real estate at eight per cent. interest, if satisfied as to the security. The Corbin Banking Co. was engaged in the business of negotiating loans of this kind, and was in the habit of effecting them with the N. E. M. S. Co., which had confidence in its business methods and representations, and was willing to lend on transactions it favored. The Corbin Banking Co. found the business of effecting loans profitable, and sought to extend it by agents at different points to whom it furnished printed blanks for making applications for loans according to its methods, and in this case it advanced money to pay off an incumbrance on the land, and thus make it an acceptable security on which the N. E. M. S. Co. would lend the money, and this consummation enabled the Corbin Banking Co. to earn the compensation it had bargained for, if the loan was effected.

The fact that the N. E. M. S. Co. was in the habit of lending money on securities presented and recommended by the Corbin Banking Co. did not create the relation of principal and agent between them. Mere frequency of transactions between inde

Statement of the case.

pendent parties does not create one the agent of the other. One may get beef at a butcher's every day in the year for a score of years without establishing any relation of principal and agent between them.

This case presents, only somewhat more distinctly, the same features as N. E. M. S. Co. v. Townes, MS. (Southern Rep. vol. 1, No. 6, p. 242), in which we held the transaction free from usury. Affirmed.

W. W. PERKINS v. DELTA PINE LAND COMPANY.

1. WITNESS. Not a party to suit.

A witness is not a party to a cause in which he is summoned; fees are not taxed in his favor. He must look for his compensation to the party summoning him.

2. WITNESS CANNOT APPEAL.

A witness has no right to appeal from a judgment taxing or re-taxing costs.

3. How WITNESS FEES RECOVERABLE.

The mileage, tolls, and per diem allowed him by statute constitute a demand against the party summoning the witness, and in the event of suit thereon, the certificate issued to him is evidence in his favor. If not demanded and paid in advance, he may sue the party at whose instance he is summoned, but he has no standing in court as a party.

APPEAL from the circuit court of Yazoo county.

HON. J. B. CHRISMAN, Judge.

In an action brought in the circuit court of Yazoo county by appellees against Castleberry & Jones, the appellant, a resident of Panola county, was subpoenaed as a witness in behalf of the defendants. He attended several terms, and received from the clerk witness certificates aggregating sixty-six dollars. The action terminated in a judgment for defendants, and costs in their favor, including the foregoing item of sixty-six dollars, were taxed against the plaintiff, the appellee in this court.

Opinion of the court.

After the rendition of the judgment, the plaintiff moved the court to re-tax the costs by striking out the amount allowed as fees to the appellant as a witness, because the witness was a silent partner of the defendant's, at whose instance he was subpoenaed. This was controverted and proof submitted pro and con. The court sustained the motion, and the costs were re-taxed, and the amount of costs represented by the said certificate issued to the witness, Perkins, was stricken out and disallowed. This appeal is taken by said witness, Perkins, who complains of the action of the court in sustaining said motion.

Hudson & Hudson, for appellant.

F. Johnston and J. R. Yerger, for appellee.

CAMPBELL, J., delivered the opinion of the court.

A witness is not a party to the cause. Costs are not taxed in his favor. He is not a proper party to a re-taxation of costs. It is not a matter that concerns him or with which he can have anything to do. A witness must look for his compensation to the party at whose instance he is summoned. If summoned to attend court in a civil case beyond the county of his residence, he is entitled to prepayment of a sum of money sufficient to pay mileage and ferriages and tolls to the court-house and one day's attendance; and every witness is entitled to demand at the expiration of each day his compensation for attending on that day, and if it is not paid need not further attend until the compensation for his previous attendance shall be paid; and any witness may sue the party at whose instance he was summoned for his attendance, and use his certificate as evidence. These are his rights, but he has no standing in court as a party to the cause, and cannot be bound or concluded by anything done between the parties. The parties recover costs, the one against the other, and the party recovering costs is entitled to recover his proper outlay for attending witnesses, and may file the certificate given to the witness by the clerk or commissioner as evidence in his favor against the other party of this item of costs he is entitled to recover

The suit was between the Delta Pine Land Co. and Castleberry

Syllabus.

& Jones. Perkins was a witness for the defendants.

He must

look to them for pay, and has no right to appeal from a judgment re-taxing costs in the case.

Appeal dismissed.

NICK JONES v. THE STATE.

1. CRIMINAL LAW. Former conviction. Assault upon several. Single difficulty. If a person, engaged in a difficulty with two opponents, unlawfully strikes each of them, he is subject to conviction for each assault, and a conviction for one will not bar a conviction for the other. Teat v. The State, 53 Miss. 439.

2. FORMER ACQUITTAL; NOT A BAR, WHEN.

And if in such fight a person lawfully strikes one adversary, but unlawfully strikes another, an acquittal for the assault upon one will not bar a conviction upon a charge of unlawfully assaulting the other.

If the defendant, in the same fight, strikes Lloyd and also Thomas, and upon the trial of the indictment for assault upon Thomas, the issue be confined to the independent act of that assault, the acquittal for the assault upon Lloyd is not a bar, nor is the record of such acquittal competent evidence to prove that the assault upon Thomas was justifiable.

4. WHEN EVIDENCE OF SUCH ACQUITTAL COMPETENT.

But if, upon such trial, it develops that the prosecution seeks to obtain a conviction for the assault upon Thomas, on the theory that the defendant struck Thomas, believing him to be Lloyd, it is then competent for defendant to prove his acquittal for the act of striking Lloyd, for the state is relying upon the criminal intent of defendant toward Lloyd, which has been conclusively disproved by the acquittal.

5. FORMER CONVICTION OR ACQUITTAL. Ingredient offenses.

A conviction or acquittal upon an indictment for an assault and battery with intent to kill bars a subsequent prosecution for the ingredient offenses, assault and battery and simple assault.

6. EVIDENCE. Incompetent, how made competent.

Evidence which, when offered, is incompetent under the theory of the state, may be made competent by the subsequent act of the state in its instructions, which change the theory upon which it seeks to secure a conviction.

Statement of the case.

APPEAL from the circuit court of Noxubee county.
HON. S. H. TERRAL, Judge.

Appellant, Nick Jones, was indicted for assault and battery with intent to kill and murder one Tom Thomas, and upon the trial was convicted of a simple assault. It was shown by the proof that appellant was engaged in a fight with one Lloyd, and that while so engaged Thomas rushed in and participated, as he claims, in the capacity of a peacemaker, but, as the defense claims, in the capacity of a combatant. It resulted that both Lloyd and Thomas were struck and injured by appellant, and the latter was indicted separately for assault and battery with intent to kill and murder Lloyd, and assault and battery with intent to kill and murder Thomas.

The trial of the first indictment resulted in an acquittal. Upon the subsequent trial of this cause the defendant offered to prove that the injury inflicted upon Thomas was in the same difficulty and at the same time and place, and part and parcel of the same continuous fight in which Nick Jones and Lloyd were engaged, and in which Lloyd was struck and injured, and that defendant, Jones, had been acquitted upon the indictment for assault and battery with intent to kill Lloyd. Defendant also offered the record of such trial and acquittal. To this proof the state objected, and the objection was sustained and the evidence was excluded.

There was some evidence to prove that the difficulty occurred at night, and that it was impossible for Jones to distinguish Thomas from Lloyd, and that he struck Thomas thinking he was Lloyd. After the evidence was concluded, the state asked for the following instruction, among others, which was given :

8. If the jury believe from the evidence that the defendant was engaged in a fight with Lloyd, and that the defendant was trying to stab Lloyd with a deadly weapon, with intent to kill, and that Thomas ran in as a peacemaker, and so announced his purpose, and the defendant cut and stabbed him believing it was Frank Lloyd, and that Thomas was making no hostile demonstrations toward the defendant, then he was not justified, even though he may have believed it was Lloyd.

J. R. Dinsmore and J. E. Madison, for appellant.