bill was dismissed finally, from which decree she appealed.

W. A. Percy, for appellant. Craft & Craft, for appellees.

COOPER, J. The damages awarded by the chancellor are not such as are usually given by the chancery court under its rules of practice, but are allowable, if at all, under the statute. Being of purely statutory origin, they must find support in the terms of the statute. Clark v. Bank, 61 Miss. 614. Section 572 of the Code provides that damages of 5 per centum shall be allowed upon the dissolution of an injunction "to stay proceedings on a judgment at law for money," or "to stay sales under deeds of trust or mortgages with power of sale." The injunction in this cause was not to stay proceedings on a judgment at law for money, but to stay proceedings in equity. Nor was it to stay a sale under a deed of trust or mortgage with power of sale, within the meaning of the second clause of the statute. That has reference alone to an injunction against the exercise of the power of the deed by the donee of the power, proceeding in pais. The motion of the appellee for damages was general in its terms, and we find no suggestion for the fee of her solicitor. The statute (Code, § 573) provides that a party desiring to have the same decreed by the chancellor or the chancery court "shall suggest, in writing, on the hearing of the motion to dissolve the injunction, the nature and amount of the damages." The decree is reversed.

JONES et al. v. McQUEEN. (Supreme Court of Mississippi. Nov. 27, 1893.) ASSIGNMENT FOR BENEFIT OF CREDITORS-INCLUDING INDEBTEDNESS PAID.

The fact that a note preferred by the terms of an assignment for the benefit of creditors was paid before delivery of the assignment does not invalidate the assignment, when the assignee was informed of the payment, and the creditors were not prejudiced by the failure to withdraw the item.

Appeal from circuit court, Noxubee county; S. H. Terral, Judge.

"To be officially reported."

Action in attachment by Winston Jones & Co. against A. M. Stoner. To the property seized, J. C. McQueen interposed a claim as assignee of defendant. There was judgment for claimant, and a new trial denied. Plaintiff's appeal. Affirmed.

A. M. Stoner, who was a merchant in Macon, Miss., made an assignment to J. C. McQueen on the 8th day of January, 1890, by which he conveyed to McQueen his "entire stock of goods, wares, and general merchandise in the house I now occupy, * * together with all store furniture, safe now used in and about said store, and also all notes and accounts, and books pertaining thereto." The assignee was directed in the

deed to pay-First, an indebtedness due Mrs. Stoner; and, second, a debt due to C. B. Fuqua; and then a note due to E. S. Ford in the sum of $500. On the same day appellants sued out a writ of attachment, and had the stock of goods conveyed in the assignment seized. The assignee filed a claimant's affidavit and bond, and kept possession of the property. On the trial of the plea in abatement there was a verdict for the plaintiffs, and they also recovered a judgment against Stoner on their claim. At the February, 1893, term of the circuit court of Noxubee county a trial was had on the claimant's issue, which resulted in a verdict and judgment in favor of the claimant. The evidence showed that at the time of the assignment Stoner was insolvent, and that he owed his wife money borrowed from time to time for a number of years. The evidence also showed that the Ford note, preferred in the assignment, had been paid a short time before the assignment was executed and delivered, and that Stoner had property which was not conveyed in the assignment. After judgment for the claimant, appellants made a motion for a new trial, which was overruled, from which they appeal.

A. C. Bogle, for appellants. Orr & Dinsmore, for appellee.

CAMPBELL, C. J. Whatever was thought or intended by Stoner, the maker, as to the character of the assignment, it is to be judged by its terms, and it is only a partial assignment, operating on the specific things enumerated in it, and therefore the contest about things left out was aside from the real ground of controversy. The only real question in the case is as to the note for $500 to Ford, mentioned in the assignment as a preferred debt to be paid, but which was paid before the delivery of the assignment, and was handed to the assignee with the assignment, accompanied by an express declaration that it had been paid and extinguished, and was not to be regarded by him as among the debts to be paid. The instrument is good on its face. The facts about the Ford note appear aliunde, and, as shown, do not annul the assignment. The facts accepted as true, as they were, exclude all idea of harm to creditors from the mere failure to withdraw the paper after payment of the Ford note, or to draw lines across the part relating to it in the assignment. Affirmed.

sistent with law, building and loan associations may be incorporated, with power to impose fines for nonpayment of dues, though there is no statute expressly authorizing the creation of such corporations.

2. Where a member of a building and loan association agrees to pay a premium to obtain a loan, interest may be charged on the actual amount loaned, but not on the premium. Sullivan v. Loan Ass'n, 12 South. 590, 70 Miss. 94, followed.

3. Code 1892, § 2484, providing that if a mortgage or trust deed, with power of sale, be silent as to the place of sale, a sale may be made after condition broken, on such notice and at such place as is required for sheriffs' sales of like property, does not hinder the grantor in a trust deed from authorizing the trustee to name the place of sale.

Appeal from chancery court, Holmes county; T. B. Graham, Chancellor.

Bill by Mary T. Goodman against the Durant Building & Loan Association to enjoin a sale of property under a decree foreclosing a trust deed of her property executed by her to defendant, and for an accounting and deduction of usurious and illegal charges for interest. From the decree both parties appeal. Reversed.

Mrs. Mary T. Goodman borrowed from the Durant Building & Loan Association the sum of $2,362.50, in 1891, and gave her note for $3,500, which she secured by giving a trust deed on some property owned by her in Tehula, Miss. The $2,362.50 represented the value of 172 shares of the building and loan stock, at $200 per share, less the premium which she had bid, at one of the meetings of the association, for the loan of the money. The obligation was that she should pay interest at the rate of 10 per cent. per annum, but she was to pay each month one-twelfth of the annual interest, and one dollar on each share owned by her in the stock of the company. She owned 20 shares. After she had paid the sum of $394, but after default in the payment of the monthly installments for several months, her property was advertised to be sold under the deed of trust. The sale was to take place at Durant, in Holmes county, Miss., on the 10th of January, 1893. Mrs. Goodman filed her bill in the chancery court of Holmes county, charging that the sale under the deed of trust, to take place at Durant, was unauthorized under the trust deed, and that a sale at that place would throw a cloud on the title to her property, and that the purchaser would acquire no title. She charged that the association had been charging her interest at a rate which was in excess of the rate authorized by law. That interest had been charged, not only on the sum which she had borrowed, but on what was called a "premium;" that is, they had been charging interest on $3,500, whereas she had only received $2,362.50. She charged that the demands of the association were usurious, unconscionable, extortionate, and oppressive, and would lead to the confiscation of the property of the borrower. She prayed for an injunction against the

sale by the trustee, and requested the court to order an account to be taken and stated, under the instructions from the court; that usurious and illegal interest be not allowed; and that unreasonable and oppressive charges be excluded; and tendered such sum as was due. The answer showed that complainant had paid the sum of $394.40; that complainant had been charged interest on $3,500; and that the sum actually received was $2,372.50. On the hearing there was an account stated, fixing the sum due by complainant, and a decree ordering same paid. The injunction was dissolved, except as to that part which restrains the sale at Durant. This part of the injunction was made perpetual. Complainant appealed from this decree, and there is a cross appeal by defendant.

A. M. Harlow and E. F. Noel, for plaintiff. Hooker & Wilson, J. Weiner, and Nugent & McWillie, for defendant.

CAMPBELL, C. J.

We reject the notion that, because no statute of this state expressly authorized the creation of building and loan associations, therefore none could be formed under the general law for incorporation. Under the general law, any corporation not prohibited could be formed, with any customary and appropriate powers not inconsistent with law. The vital principle of such associations, as known to us, is compounding monthly receipts, whereby to produce astounding results for the mutual benefit of all concerned; and what is called a "fine" (merely an agreed sum as liquidated damages) is imposed for every default in payment, as a spur to prompt payment, so as not to derange the process of compounding, which must fail if there is want of payment as agreed, and failure of which would cause failure of the scheme. We see nothing wrong in members of full age, and compos mentis, mutually binding themselves to so beautiful a scheme for reciprocal advantage, and being held to the performance of what they have agreed. Interest on premiums is not allowable. Sullivan v. Loan Ass'n, 70 Miss. 94, 12 South. 590. The Code of 1892 did not have the effect to free the contract from the taint of usury, if full sanction be given to the doctrine contended for, because of section 4, which preserves, unaffected by changes made by the Code, any former cause of action or defense. Section 5 has reference only to crimes and forfeitures and penalties connected with them, or growing out of some offense. The trustee had the right to name the place of sale. Section 2484 of the Code of 18921 does not hinder the grantor

'Code 1892, § 2484, provides that if a mortgage or trust deed, with power of sale, be silent as to the place of sale, a sale may be made after condition broken, on such notice and at such place as is required for sheriffs' sales of like property.

from authorizing the donee of a power in a mortgage or deed of trust to designate the time, place, and terms of sale. The statute

comes in when the instrument is silent on the subject. Empowering one to name time, place, and terms is just as if the time, place, and terms were inserted in the instrument by the maker, for, done by authority conferred by him, it is as if done by himself. The transaction should be purged of all illegal charges, and the rights of parties adjusted after this, on the basis of their stipula- | tions mutually binding; and sale may be allowed according to the power conferred by the deed of trust. Reversed and remanded.

INTERNATIONAL OCEAN TEL. CO. v. SAUNDERS.

(Supreme Court of Florida. Nov. 28, 1893.) TELEGRAPH COMPANIES FAILURE TO DELIVER MESSAGE-DAMAGES-MENTAL SUFFERING.

1. In an action sounding in tort, but for compensative damages for the breach of a contract by a telegraph company to promptly send or deliver a telegraphic message, mental pain and suffering is not an element of damage, for which a recovery can be had; and, where the failure of a telegraph company to promptly send or deliver a telegram according to its contract results in no other damage than mental pain and suffering, the only recovery that can be had would be nominal damages, or, at most, the price paid for the transmission of the message. Mabry, J., dissenting.

2. The person to whom a telegram is sent can maintain an action for whatever legal damage results to him from the negligence of the company in its transmission or delivery, where the message shows that he is interested in it, or that it is for his benefit, or that damage will result to him from such negligence. (Syllabus by the Court.)

Appeal from circuit court, Brevard county; John D. Broome, Judge.

Action by Charles Saunders against the International Ocean Telegraph Company. Plaintiff had judgment, and defendant appeals. Reversed.

John E. Hartridge and Jones & Atkinson, for appellant. D. L. Gaulden, for appellee.

TAYLOR, J. The appellee sued the appellant, in case, for its alleged negligence in not promptly delivering to him a telegram transmitted over its line. The plaintiff recovered judgment for $1,200, and from such judgment the defendant company appeals.

The declaration is as follows:

"The plaintiff, Charles Saunders, by D. L. Gaulden, his attorney, sues the International Ocean Telegraph Company, for that, whereas the defendant, on the 4th day of October, A. D. 1890, was possessed of, and using, and operating a certain telegraph line extending from the city of Jacksonville, Duval county, state of Florida, to the town of Titusville, Brevard county, state of Florida. That said two places are distant from each other about 160 miles, and are connected by

direct line of said defendant telegraph company and the Jacksonville, Tampa & Key West Railway. That plaintiff's wife, Alice J. Saunders, on the said 4th day of October, 1890, was seized with a mortal malady in the said city of Jacksonville, and that about the hour of seven o'clock on the morning of October 4, 1890, the superintendent of St. Luke's Hospital presented to the defendant the following message, to wit:

"Jacksonville, Fla., Oct. 4th, 1890. Charles Saunders, Titusville: Wife dying. Come at once, or send wishes by wire. [Signed] Superintendent St. Luke's Hospital.'

"That said message was accepted by the defendant for immediate transmission and delivery to him at Titusville at the full-rate charges or toll, and that through the gross, wanton, and reckless negligence of defendant, and in palpable violation of its duty, the message was held by the defendant, and not delivered to him, until about the hour of half-past nine o'clock on the night of the 6th day of October, A. D. 1890. That said message was received at said Titusville office on the morning of the 4th day of October, 1890, at half-past eight o'clock, but was not delivered to him for over sixty hours after the same was received at the Titusville office. That his said wife died in the city of Jacksonville on the 6th day of October, 1890, and hence said message was not delivered to him, or received by him, until ten and a half hours after his said wife's death. That there was only one train leaving Titusville each day, at the hour of nine o'clock A. M., for the city of Jacksonville, which said train arrived in Jacksonville at the hour of half past six o'clock P. M. That, had said message been delivered promptly, he could have arrived in Jacksonville on Saturday night, October 4, 1890. That, by reason of this negligence and breach of duty on the part of the defendant, he was prevented from telegraphing to said superintendent his wishes, and was prevented from attending his dying wife, and ministering to her in her last hours, and also from making desired preparations for her interment. That said message was sent by the superintendent of St. Luke's Hospital, and he paid defendant full rates or toll therefor, to wit, the sum of forty cents, at the Titusville office, and as said defendant failed to deliver said message promptly, and notified the said superintendent of St. Luke's Hospital that said message had not been delivered, and collected the sum of forty cents charges on said message, which said forty cents was charged to plaintiff by said superintendent, and which he had to pay, thereby entailing a loss of forty cents on this plaintiff. By reason of which said defaults, wrong, and negligence on the said defendant's part, plaintiff incurred a loss and damage of the said forty cents paid as aforesaid on account of the charges made and collected from said superintendent of St. Luke's Hospital, which

plaintiff had to pay as a legitimate charge against him. And, besides this, the plaintiff suffered great damage by reason of said wrong and injury so done by the defendant to his affections and feelings; and the plaintiff then and there suffered great damage, in anguish and pain of mind, by reason of the said negligence and wrong so done him by defendant. That while his said wife was dying she was deprived of that care, attention, consideration, and consolation which she would have received but for said negligence of said defendant in failing to deliver said message promptly as aforesaid, and that by reason thereof he was damaged, în that he suffered great mortification, anguish, and pain of mind, and injury to his feelings and affections, in not being able to be with his said wife in her dying hours, and in not being able to make preparations for his wife's funeral and interment, all of which damaged plaintiff in the sum of $1,995," etc. At plaintiff's request the following instruction was given to the jury: "If, from the evidence, you believe that the superintendent of St. Luke s Hospital sent the following message to the plaintiff: 'Wife dying. Come at once, or send wishes by wire,'-and said message was accepted by the defendant for transmission, and the toll or charges on same was paid to defendant, and this message was negligently delayed in delivery by defendant company, whereby plaintiff, Saunders, was prevented from attending his dying wife, and from making desired preparations for her funeral, the plaintiff. Saunders, would be entitled to recover for the wrong and injury done his feelings, and for the mental anguish and pain of mind suffered by him; and in making up your verdict you must take into consideration all the testimony, and fix his damages, if any, at such amount as you think, from the evidence, is just, reasonable, proper, and fair." To this charge, exception was taken, and the error assigned thereon presents the real issue involved in the cause: Can an action be sustained, and can damages be admeasured, for the breach of a contract that results in mental suffering alone, without any accompanying physical injury or suffering, and without any concomitant damage to the person, character. reputation, or property?

The supreme court of Texas, in So Relle v. Telegraph Co., (decided in 1881,) 55 Tex. 308, a case in which the telegraph company negligently failed to promptly deliver a telegram informing plaintiff of the death of his mother, and summoning him to meet a conveyance at a certain point that night that would carry him to where the remains of his mother were, in time to attend the funeral, first led off with an affirmative answer to the question. The court in that case asserts that it is the settled rule of law in that state that injury to the feelings, caused by the willful neglect or fault of another, constitutes such actual damages, for

which a recovery may be had, and cites as authority for such assertion the cases of Hays v. Railroad Co., 46 Tex. 279, and Railroad Co. v. Randall, 50 Tex. 261. In neither of these cases is the doctrine either settled or asserted that injury to the feelings, or mental suffering, alone, can be made the subject of a suit for compensative damages. The Case of Hays, supra, was against a railroad company for damages for wrongfully and forcibly ejecting the plaintiff from its passenger train in the presence of his wife and family, in which it was claimed that the ejectment was done in a rude and insulting manner, and by personal violence, resulting in injuries to plaintiff's clothing and bruises to his person. Exemplary or punitive damages were claimed, and the jury were instructed to estimate the actual damnages by the "injuries sustained by the plaintiff in his person, his estate, and his feelings," and it was held that by this charge the subject of the amount of actual damages was fairly placed before the jury. But nowhere is it asserted that mental suffering alone can be made an independent basis for admeasuring damages. The case, like many others founded on tort that might be cited, simply holds that mental suffering or injured feelings may be taken into consideration as an element of damage, when coupled with or accompanied by substantive injury to the person or estate, upon the groun 1. as stated in the authorities, that in such cases the mental suffering growing out of and produced by the physical injury is so interwoven with the latter that it is impossible to consider the one without contemplating the other. City of Salina v. Trosper, 27 Kan. 544; Mulford v. Clewell, 21 Ohio St. 191; Canning v. Williamstown, 1 Cush. 451; Railroad Co. v. Stables, 62 Ill. 313; Johnson v. Wells, Fargo & Co., 6 Nev. 224; Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696; Trigg v. Railroad Co., 74 Mo. 147. The same may be said of the Case of Randall, supra. In that case the plaintiff, a brakeman on the defendant's trains, sued the company for damages for its negligence in having an open ditch across its track, into which he fell while performing the duty of coupling two of defendant's cars, and whereby his arm was run over and crushed by the cars, necessitating its amputation. In that case, too, the doctrine is sanctioned that an element of the verdict may be compensation for the mental and physical suffering caused by the injury. But nowhere is the doctrine sanctioned that mental suffering alone can sustain an action. For the support of its ruling in the So Relle Case the Texas court next quotes at length the dictum of the authors of Shearman & Redfield on Negligence, which dictum, as originally incorporated in their work, was entirely without the support of any adjudged case. The seduction case of Phillips v. Hoyle, 4 Gray, 568, is next invoked to the support of the Texas