4. Street. Acceptance by authorities.
Evidence showing that a street has been laid out and used as such for many
years, that it is indicated on city maps, and has been recognized by the
authorities as a public highway, though without formal adoption, is
abundantly sufficient to establish its acceptance by the corporate authori-
ties as one of the streets of the city. Whitfield v. City of Meridian, 570.
ACTION OR SUIT.
1. Boards of supervisors. Authority to sue.
Boards of supervisors can sue only in regard to matters in which the county
is interested (Code 1880, 2175). They cannot sue in reference to matters
which concern only a portion of the county. Freeman v. Board Sup's Lee
Co., 1.
2. Part of county interested. Board cannot sue.
Under the act March 5, 1878, entitled "an act to prevent stock from
roaming at large in certain counties" (Laws, 1878, p. 305), the boards
of supervisors are not the proper parties to bring a suit to enjoin the fence
commissioners against improperly locating and constructing a fence around
a township. This is a matter in which only a part of the county is inter-
ested. Ib.
The landlord's right as against the products raised on the leased land is
broader than the remedy conferred by the statute regulating attachments
for rent, and he is, therefore, not confined to the statutory remedy in en-
forcing his rights as to such products. Newman v. Bank of Greenville,
323.
4. Same. Assignee cannot distrain.
Although the landlord's lien passes by assignment the assignee cannot resort
to the statutory remedy of attachment for rent. Ib.
5. Replevin. Claim of property. Special execution. Code 1880, 1774, 2624,
2628, 2633.
One asserting ownership of personal property, about to be taken under special
execution issued on a judgment in replevin to which he is not a party,
cannot interpose a claim for it, and therefore he may maintain replevin
against the officer, 2633 of the code, prohibiting replevin in certain cases,
not being applicable. Andrews v. McLeod, 348.
6. Right of plaintiff when suit brought.
Where a plaintiff, who is the real owner of a note, which is, however, in-
dorsed by only one of two payees therein, sues upon it in his own name
alone, the suit will not be defeated upon the ground that a cause of action
did not exist when the suit was brought. In such case there is a right of
action in plaintiff, and merely a non-joinder of a necessary party. Walker
v. Hall, 390.
7. Distinction between local and transitory.
Whether actions in this state are local or transitory is governed solely by
statute, and not by the common law. Archibald v. R. R. Co., 424.
8. Local actions; what are.
The only local actions in this state are ejectment and trespass on land, styled
at common law trespass quare clausum fregit. Ib.
Local actions must be commenced in the county where the. land is situated.
All other actions must be brought with reference to the person of the de-
fendant. Code 1880, 1498; Oliver v. Loye, 59 Miss. 320. Ib.
10. Same. Action for damage from overflow. Case in judgment.
An action to recover from a railroad company damages which accrued to
plaintiff's land from the manner in which the company constructed its
road-bed along the line of said land, is not a local action, and may be
brought in any county where any part of such railroad may be. 16.
11. Action of trespass on land defined.
An action is not an action of trespass on land, within the meaning of code
1880, 1498, unless there exist the elements of force and entry necessary
to constitute the common law action of trespass quare clausum fregit. Ib.
12. Tax. Remedy for collection.
If a statute which creates a tax provide a special remedy for its collection,
such remedy is exclusive, and an ordinary action to recover the tax will
not lie, unless it is so expressly provided. State v. Piazza, 426.
13. Sale of liquors. Privilege tax, how collected. Code 1880, 1109.
A suit will not lie in behalf of the state to recover the amount of unpaid
privilege tax imposed by 1109, of the code of 1880, upon retailers, who
sell or give away liquors in less quantities than one pint. The summary
remedy for its collection by the sheriff, and the penalty provided by said
section, must be deemed sufficient to secure the payment of such tax. Ib.
14. Mortgage. Right of assignee. Cannot sue for previous conversion of property.
The assignment of a debt secured by trust-deed, carries with it as an incident
the security; but where there is no transfer of the right to sue for a conver-
sion, the assignee of the debt and trust-deed cannot sue third persons for
the conversion of personal property embraced in the encumbrance, if the
conversion was prior to the assignment. In this respect there is no differ-
ence between a trust-deed and an ordinary mortgage. Gabbert v. Wallace,
618.
15. Same. Statute authorizing transfer of actions arising from torts.
The fact that our statute confers the right to assign causes of action arising
from torts does not affect this. The right to sue for the previous conversion
of the mortgaged property is not a part of the security which passes by an
assignment of the debt. Ib.
ADVERSE POSSESSION.
Effect thereof. Need not immediately precede suit.
To create title to land by adverse possession, it is not necessary that the pos-
session be continuous up to the time suit is begun therefor. Possession at
any time before suit for the requisite period gives perfect title, and it is
not affected by a subsequent vacancy in the possession.
Marshall, 676.
1. Affidavit by attorney. Requisites thereof.
While an attorney may make oath for a client in all cases where an oath is
required, it should be special, and show whether the knowledge or in-
formation is that of the attorney or the client. Burks v. Burks, 494.
2. Publication for defendants. Form of affidavit by attorney.
The form of the affidavit to secure publication for a defendant whose resi-
dence is unknown, if made by an attorney, shall be, "that the post-office
is unknown to affiant, and he believes it is unknown to complainant or
petitioner." Code 1880, 1855. Ib.
1. Application must show character of.
When a demurrer has been sustained to a bill, a decree refusing leave to
amend will not be reversed where the record fails to show in what way the
complainant proposed to amend. Watts v. Patton, 54.
2. Criminal law. Practice. Amendment.
An insufficient or defective affidavit may be amended after appeal to the cir-
cuit court at any time before the submission of the cause of the jury. Code
1880, 1581; Acts 1886, p. 85. Garman v. The State, 196.
3. Chancery practice. Amendment.
Even after a cause has been set down for argument and final hearing, it is
error to refuse leave to complainant to amend his bill to cure a variance
between its allegations and the evidence, where the variance is first dis-
closed by a deposition of a witness, which is filed less than a week before
the court meets, and where the amendment will not change the real con-
troversy. Jeffries v. Jeffries, 216.
4. Non-joinder. Code 1880, 1511. Amendment.
Where the real owner of a note, which is, however, indorsed by only
one of two payees therein, sues upon it in his own name the defendant
can only object for non-joinder, and this, under ? 1511, code 1880, must be
by written notice, filed with his plea, stating the name of the party omitted.
Thereupon the plaintiff should be allowed to amend by joining the proper
party. Walker v. Hall, 390.
As the court, in a suit thus brought, if notice of non-joinder had been given,
might have allowed plaintiff to amend, by joining as plaintiff for his use
the payee who had not indorsed the note, the defendant is not harmed,
and cannot complain, if the court allows such payee to indorse the note
at the trial. Ib.
Where a defendant sued as a partner has failed to deny the partnership under
oath, and has merely filed a notice that he is not a partner, which is treated
by the plaintiff as a plea, or so as to mislead the defendant, he should, in
order to bring the controversy fairly to trial, be allowed upon the trial to
file the requisite sworn plea. Hirsch v. Shafer, Schwartz & Co., 439.
7. Chancery pleading. Amendment to bill. Different state of facts.
A different state of facts from those averred in the original bill may be set
up by way of amendment, if the character of the relief sought remains
the same, and this, notwithstanding the averments in the amendment are
inconsistent with those of the original bill; provided they are not incon-
sistent with its purpose and the relief originally sought. Hardie v. Bul-
ger, 577.
8. Same. Bill to cancel mortgage. Amendment.
To a bill seeking cancellation of a mortgage for certain alleged reasons, an
amendment will be permitted which sets up other and even inconsistent
reasons upon which the same relief is prayed. Ib.
9. Demurrer to amendment after answer to original bill.
A defendant cannot demur to an amendment to a bill for reasons that relate
to matters which are also set out in the original bill, upon which he has
joined issue by his answer on file. Ib.
1. Chancery practice. Answer. Date of filing. Time for taking testimony.
Where an answer in chancery is filed March 13, and is signed by the defend-
ant on that day, the clerk making and subscribing an indorsement, "sworn
to and subscribed before me this 13th March, 1888," the five months time
allowed for taking testimony begins to run from that date, notwithstanding
the record shows a more full and formal affidavit to the answer, written
out and subscribed before the clerk on March 14. Hart v. Bloomfield, 100.
2. Chancery pleading. Answer as evidence. Positive denial on information.
The sworn answer of a defendant which is responsive and contains direct and
positive denials is evidence for the defendant, although it be shown by evi-
dence aliunde that in making it he had no personal knowledge of the facts.
MGehee v. White, 32 Miss. 41, cited. Davis v. Hart, 642.
1. Witness cannot appeal.
A witness has no right to appeal from a judgment taxing or re-taxing costs.
Perkins v. Delta Pine Land Co., 378.
2. Supreme court. Appeal in criminal case. Bond for costs, or affidavit.
An appellant in a criminal case may be released on bail, pending the appeal,
under 2339, code 1880. But he must also give a bond or a deposit for
costs, or make affidavit of inability to do so, under 2335. If this is not
done, the appeal will not be entertained. To discharge a prisoner on bail
after conviction without a compliance with both sections is unauthorized.
Lum v. The State, 389.
3. Supersedeas bond. Joint appellants. Affirmance as to some. Code, § 2332.
If appellants execute a joint supersedeas bond, judgment will be rendered
against the sureties thereon, under code 1880, 2332, if the judgment be
affirmed as to any one of the said appellants. Terry v. Curd & Sinton Mfg.
Co., 394.
4. Supreme court practice. One appellant cannot avail of error affecting only another.
Code 1880,
If one of several defendants against whom a decree has been rendered ap-
peals therefrom, and his co-defendants, against whom the decree was ren-
dered after pro confesso and upon defective service by publication, enter
their appearance in the supreme court, and consent to a severance, thereby
electing to abide by the decree, the appellant cannot complain of the error
against his co-defendants, who themselves fail to assign it. Code 1880,
21440. Burks v. Burks, 494.
Judgment without appearance. Appeal. Jurisdiction of appellate court.
Where there are three separate claims in favor of the plaintiff against the
defendant, filed with a justice of the peace for suit, and summons is
served on only one of them, if judgment is rendered against the de-
fendant in the only suit in which he appears, and, upon his declining to
appear in the other two suits, the justice renders judgment by default
against him in the same judgment for the amount of these two claims, and
from the judgment for this aggregate sum an appeal is taken to the circuit
court, that court should try anew only the suit in which the defendant ap-
peared. L. & N. R. R. Co. v. McCollister, 106.
It is not proper for a sheriff to take bond for the appearance of a prisoner
whom he has arrested upon a capias returnable forthwith during the term at
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