sense, that the superintendence contemplated by the statute "may be either over men or machinery, plant," etc., but, whether over the one or the other, it must still be superintendence, power of direction, superior care, and control, with authority, as distinguished from direct personal manipulation. And while there may possibly be superintendence of the operation of a machine or a number of machines by one person without intermediate human agency, such a case is most difficult of conception. We are inclined to believe that its possibility even does not exist, and to think that what is really intended by the declaration that there may be superintendence of machinery is that where one has authority to have machinery operated, to direct its operation, to overlook it, etc., and the means at hand in others to carry out his directions, he is superintendent both of the machine to be operated and of the men who are to manipulate it as he directs. This state of facts was brought forward in the argument upon which the declaration referred to was based, (Rob. & W. Employ. Liab. p. 262,) and we know of no case to the contrary. The case of Railroad Co. v. Burton, (Ala.) 12 South. 88, virtually adopts this view, and the case of Pipe Works v. Dickey, 93 Ala. 418, 9 South. 720, is în no sense opposed to it, since this question was not decided, or at all discussed, in that case; but, to the contrary, the existence of superintendency in Calahan, who really only had manual charge of a machine, was only assumed for the purpose of placing the defense on the ground of contributory negligence, of which there was no serious doubt on the evidence. Whether, however, there may possibly be a case of superintendency purely of machinery or not, it is most clear to us that Gould's position involved no such case, dissociated from consideration of the fact that he had a helper, whose duties are shown in the evidence. Whether he had any superintendence intrusted to him, in view of this consideration is a question not necessary to be decided in this case. If any such superintendency existed in that connection it was not a general superintendency over the helper and the machines, not a general power of having the machines operated as he directed by the hand of the helper, but only a special superintendence to direct the helper to assist him, Gould, in the manual labor of operating them. It being his duty to personally perform-not merely direct-this labor, and his right only to have the cther man help him to perform it, his relation to the machinery being primarily that of a laborer, it cannot be said that he was in the exercise of any superintendence while he was discharging this primal duty of a manual laborer. His superintendence, if any he had, extended only to his actual direction of the helper, and ceased whenever he did any act in person and in the line of his duty as the en

have charge and direction of, as of a school; direct the course and oversee the details of, (some work, as the construction of a building or movement, as of an army;) regulate with authority; manage." And Roberts & Wallace, in their work on Duty and Liability of Employers, say: "The word 'superintendence' seems properly to imply the exercise of some authority or control over the person or thing subjected to oversight. * * * Accordingly it may, it is thought, be safely assumed that the person for whose negligence an employer is liable under this subsection (2) must be one to whom he has delegated some of that authority or power of control which he would otherwise himself have exercised." Pages 260, 261. To leave out of view for the moment the fact that Gould, the engineer, had a helper or assistant in the manipulation of these engines, we have simply the case of a man engaged in the manual operation of the machines. With his own hands he started the engines, regulated their revolutions, and stopped them; and all this, even to the number of revolutions per minute, he did at the direction and under the control of persons superior to him in the common employment. | His was not the duty of giving, but of obeying, directions. He did not draw the attention of others to a thing to be done by them, but himself was required to do whatever was to be done. His care of the engines was not for the purpose of direction, and with authority to direct, but was a care to be effectuated by his own hands. He was not to guide and control others in their operation of the engines, but to control and regulate the engines by the laying on of his own hands. He was not to direct the course and oversee the details of the operation of the machines, but the course was marked out by superior authority, and the details were executed by his personal physical exertion. He had none of that authority or power of control which the employer would otherwise himself have exercised, but all authority in the premises properly belonging to the master was exercised upon him in directing his services as a manual laborer. To say that a man oversees, overlooks, directs, guides, controls, inspects, has a care of, superintends an act which he himself wholly performs, is a contortion of language not to be tolerated. These terms, indeed, are always resorted to, to indicate that the thing done was not manually done by the person spoken of, but at his bidding. Each of these synonyms, and the word "superintendence" itself, must be taken in this ordinary and usual significance here. "Superintendence," in the statute, whatever else it may mean, has no application at all to a person whose sole duty is to be performed by personal acts of manual labor, or any direct bringing to bear of the physical energies to the end in view. It has been said, and is doubtless true in a

suit. There was in fact no judgment rendered, formally dismissing the claim of Kennon & Hill; the entry reciting only that plaintiffs moved to dismiss the claim, and that claimants consented to the motion. The judgment rendered against claimants was that plaintiffs have and recover of them the property sued for, or its alternate value as assessed by the jury in the main cause, and the costs of the claim suit. This judgment was irregular. It will be corrected here by an adjudication dismissing the claim of Kennon & Hill, and taxing them with the costs thereof, and as corrected it will be affirmed.

1. In an action on a note, defendant pleaded usury and non est factum. The note showed usury on its face. The jury found for plaintiff for the full amount, with interest from maturity to trial. Defendant moved for a new trial on the grounds that the verdict was contrary to the evidence, and that the jury ignored the plea of usury. The court, by consent of parties, entered judgment reduced to the principal of the note. Held, that said consent was merely to the reduction, and did not waive the other defense.

2. One who indorses a note on the express condition that it shall not be delivered unless another signs as comaker is not liable to the payee taking it without knowledge of the condition, or of the forgery of the comaker's sig

nature.

Appeal from circuit court, Calhoun county; Leroy F. Box, Judge.

Action by J. P. Allgood against J. S. Sharp as surety on a promissory note. Judgment for plaintiff. Defendant appeals. Reversed. Upon the introduction of all the evidence, the court, among other things, instructed the jury as follows: "That if they found from the evidence that the plaintiff was not present when the note was made and signed, and had no notice that the note received of Thomas Stewart was not signed by the surety, A. M. Stewart, as it purported on its face to be, at the time of delivery, and if plaintiff lent Thos. Stewart the money on the faith of all the signatures thereto being genuine, that they should give a verdict for the plaintiff." The defendant duly excepted to this portion of the court's charge. At the request of the plaintiff, the court gave the following written charge to the jury: "Unless the proof shows that the plaintiff knew of the fraud by which A. M. Stewart's name was signed to the note, if the jury find that the name was forged, then the plaintiff will be entitled to a verdict." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges as asked: (1) "That if they believe the evidence they must find for the defendant;"

(2) "that, if they believe from the evidence that defendant signed the note as surety upon the understanding and condition with Thomas Stewart that A. M. Stewart was also to sign the note as surety, they must find for defendant;" (3) "that if they believe A. M. Stewart did not sign the note sued on, and that defendant signed the note upon condition that before its delivery A. M. Stewart was to sign or had signed it, then they must find for defendant."

Cooke & Cooke, for appellant. Caldwell & Johnston, for appellee.

STONE, C. J. It is contended for appellee that, even if the circuit court erred in the charges given and excepted to on the trial of this case, that error was healed by the ruling of the court, four days later, on the motion for a new trial. There had been two pleas interposed,-usury and a special plea of non est factum. The plea of usury was unquestionably sustained. The note sued on showed on its face that interest was to be paid at the rate of 121⁄2 per cent. Notwithstanding this, the jury allowed to the plaintiff interest on the note from its maturity up to the trial. The defendant moved for a new trial on two grounds: First, "that the verdict is contrary to the evidence;" and, second, "that the jury ignored the plea of usury, which was proven by the note itself on which the suit was brought, and allowed interest on the note, which is included in the verdict." Passing on this motion, the circuit court entered the following judgment: "Came the parties by attorney, and by consent of parties the judgment heretofore rendered in this case is hereby reduced to two hundred and eighteen and 75/100 dollars, and the plaintiff is taxed with all the costs of the suit." This sum, $218.75, is the sum of the unpaid principal of the note sued on. The contention is that this corrected judgment, entered by consent, cured any errors that may have been committed on the trial, or, rather, was a consent to waive them. We do not so understand or interpret the record. The consent was not that the judgment might be rendered. It was that it might be reduced. The jury, by their verdict, had given to plaintiff $393.38. Because of this excessive amount, a new trial was moved for. The amended judgment clearly implies that, but for the reduction of the recovery, a new trial would have been granted. The presiding judge had no power to compel the plaintiff to remit a part of the verdict. He exhausted his power when he announced that he would grant a new trial unless the plaintiff made such remission. The record justifies the inference that this is precisely what the court announced would be done, and that thereupon counsel consented to remit, and did remit, all over the principal of the note. We hold that this remission or reduction of the amount of the recovery is what the parties

consented to, and that it was in no sense a waiver of the other defense relied on.

The other line of defense is made good, if the jury believed the testimony. All the testimony bearing on the question was to the effect that Sharp, if liable at all, was only a surety of Thomas Stewart, the principal debtor. He refused to sign the note unless A. M. Stewart would also sign as surety. On no other terms was Thomas Stewart authorized to use the paper. A. M. Stewart's name was attached to the paper as a comaker, but there was testimony tending to show that his (the said A. M. Stewart's) name was placed there without his act or authority. Being sued on the paper, he had successfully defended the suit on a plea of non est factum. If the jury believed Sharp's account of the transaction, and that he signed the note, and consented to be bound, only on the condition that A. M. Stewart would become a comaker, and if they further found that A. M. Stewart's name was placed there without his authority or ratification, then this was and is a defense for Sharp in the present action. And it is no answer to this defense that Allgood was not informed of this condition anterior to his acceptance of the paper. The authorities hold that it was his duty to inform himself of the genuineness and binding obligation of the signatures, before accepting and acting on them. Bibb v. Reid, 3 Ala. 88; Robertson v. Coker, 11 Ala. 466; Insurance Co. v. McMillan, 29 Ala. 147; Guild v. Thomas, 54 Ala. 414; King v. State, 81 Ala. 92, 8 South. 159; Smith v. Kirkland, 81 Ala. 345, 1 South. 276; Marks v. Bank, 79 Ala. 550; Evans v. Daughtry, 84 Ala. 68, 4 South. 592; Campbell v. Larmore, 84 Ala. 499, 4 South. 593; Bank v. Evans, 15 N. J. Law, 155; Pawling v. U. S., 4 Cranch, 219; Linn Co. v. Farris, 52 Mo. 75; Ayers v. Milroy, 53 Mo. 516; Lovett v. Adams, 3 Wend. 380; Bronson v. Noyes, 7 Wend. 188; Pepper v. State, 22 Ind. 399; People v. Bostwick, 43 Barb. 9; Perry v. Patterson, 5 Humph. 133. Several of the charges given and excepted to are not reconcilable with these principles. Reversed and remanded.

ADAMS, State Revenue Agent, v. TONELLA et al. (Supreme Court of Mississippi. March, 1893.) CONSTITUTIONAL LAW-TAXATION-STATE REVENUE AGENT.

Code 1892, §§ 4190-4193, empowering the state revenue agent to assess and collect all past-due delinquent taxes, requiring him to investigate the books and vouchers of all fiscal officers of the state, and of every county, municipality, and levee board, and to collect all revenue improperly withheld from either, and to sue all persons and officers for past-due taxes, whether assessed properly or not, and, when any taxable person or property has escaped taxation, to assess the tax as the collector may do, and collect it, but not to assess taxes v.14so.no.1—2

accruing before 1886, and to have the burden of proof that the property or person was not, or not properly, assessed, and, should he think property improperly assessed and approved, to notify the board of supervisors, and call for a rehearing, violate Const. 1890, § 112, requiring taxation to be uniform and equal throughout the state, property to be taxed in proportion to its value, and assessed under general laws, and by uniform rules, according to its true value.

Appeal from circuit court, Warren county; J. D. Gilland, Judge.

Action by Wirt Adams, state revenue agent, against Theodore Tonella and others, for taxes. Judgment for defendants. Plaintiff appeals. Affirmed.

Calhoon & Green and R. H. Thompson, for appellant. Murray F. Smith and J. Hirsh, for appellees.

COOPER, J. This is a suit by the revenue agent of the state, Wirt Adams, against Theodore Tonella, a resident of the city of Vicksburg, in the county of Warren, and Brennan and Sproules, sheriff and assessor of said county of Warren, and Keirsky, the assessor of the city of Vicksburg. The declaration avers that during the year 1891 the defendant Tonella was the owner of certain personal property, to wit, "notes, accounts. and valid securities for loaned money," of the value of $7,200, which was subject to assessment and liable to taxation for said year in said county and city; that the levy for state and county taxes for the year 1891 was 12 mills on each dollar of taxable property, and that for city taxes was 20 mills on the dollar; that it was the duty of Tonella to return said credits for assessment and taxation, and was also the duty of said assessors and collectors to have caused the same to be assessed according to law, which they willfully failed and neglected to do; that in September, A. D. 1892, the plaintiff, as by law he was authorized to do, assessed the said credits to the defendant Tonella, and reported the same to the proper officers, to be by them noted on the assessment rolls, and gave notice of his action to Tonella. The plaintiff demanded judgment against Tonella for $144, the amount claimed as taxes due to the city of Vicksburg, and for $86.40 as state and county taxes. He also demanded judgment against Brennan, the sheriff, and Sproules, the county assessor, and Keirsky, the city assessor, for the amount of the commissions to which plaintiff would be entitled if successful in this suit. The defendants demurred, and, their demurrer having been sustained, the plaintiff appeals.

The office of state revenue agent is created, or the statutes relative to the same revised and amended, by chapter 126 of the Code of 1892. The first three sections of the chapter (4187-4189) have relation to the creation, election, and qualification of the offiThe last nine sections relate to the pro

cer.

cedure by the agent to enforce the payment of taxes after they have been imposed, or to other matters not now necessary to review. The question involved in the present sult arises from a consideration of sections 41904193, which are as follows: "Sec. 4190. After the expiration of the fiscal year in which the taxes become due and payable, and that, too, whether the taxes were assessed or properly assessed or not the revenue agent may assess and collect all past-due taxes, whether the same be caused by the default of the assessor, tax collector or tax-payer; but if the revenue agent institute suit against any person or corporation who has been correctly assessed, and the taxes so assessed paid, he shall be liable on his bond to such person or corporation for all costs and expenses incurred in defending such suits, if the judge will certify that the suit was frivolous, or that there was no ground for the action. Sec. 4191. It is the duty of the state revenue agent to investigate the books, accounts, and vouchers of all fiscal officers of the state, and of every county, municipality and levee board, and to sue for, collect and pay over all revenue improperly withheld from either; and he has power, and it is his duty, to proceed against all such officers and their sureties by action to recover any such revenue; and it is his duty to proceed, by suit in the proper court, against all officers, persons, corporations, companies and associations of persons, for all past due and unpaid taxes owing to the state, counties, municipalities and levee boards, whether ad valorem, privilege, license, poll or other, and whether assessed or properly assessed or not, if the fiscal year in which the same ought to have been paid have expired; and his duty to proceed by suit for the collection of any such taxes arises whether the failure to pay the taxes originated from the neglect or failure of any officer or board to perform his or its official duty, or from the failure of any person or corporation to fully give in his or its property to the assessor, or at a sufficient valuation or otherwise. But his right and duty to collect money from a fiscal officer, where the delinquency appears by correct open account on the books of the proper accounting officer shall only arise after he has given thirty days' notice to the officer to pay over the amount, and his failure to do so. Sec. 4192. It is the duty of the state revenue agent, when any person, corporation, property, business, occupation or calling liable to an ad valorem or privilege tax has escaped or shall escape taxation by reason of not being assessed or of not being demanded, or otherwise, to assess the same as the tax-collector is authorized to do, and to collect and pay over the taxes thereon in like cases. He shall report all additional assessments, in writing, to the tax-collector, whose duty it will be to enter the same on the assessment-roll, as in case of an assessment by him, only he shall note

that the assessment is made by the state revenue agent. The taxes on all such additional assessments may be recovered by the state revenue agent by action, if not paid within ten days after notice to the party assessed, if he be a resident of the state, or, if a nonresident, within ten days after the date of the assessments; and the proceedings may be against the person or property assessed, or both. Sec. 4193. The state revenue agent shall not assess taxes accruing prior to the year 1886; and in all cases the burden of proof shall be on the agent to show that the property or person was not assessed, or properly assessed; and the person assessed or reassessed shall have ten days' notice, in writing, before bringing suit. But when the revenue agent shall think property which has been assessed and approved by the board of supervisors, has been improperly assessed, he shall notify the board of supervisors, and summon the party assessed to appear before it for a rehearing. The board shall hear both parties, and decide the matter of dif ference, from which either party may appeal." Section 112 of the constitution of 1890 declares as follows: "Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. * * Property shall be assessed for taxes under general laws, and by unlform rules, according to its true value." Under the constitution of 1869, the provision was that "taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law." Article 12, § 20. By section 21, art. 5, of the constitution of 1869, it was provided: "A sheriff, coroner, treasurer, assessor and surveyor shall be elected in each county by the quali fied electors thereof, who shall hold their offices for two years, unless sooner removed." Section 138 of the constitution of 1890 is as follows: "The sheriff, coroner, treasurer, assessor, surveyor, clerks of courts and members of the board of supervisors of the several counties, and all other officers exercising local jurisdiction therein, shall be se lected in the manner provided by law for each county."

The provisions of our revenue laws for the assessment of property for taxation, aside from those of chapter 126 of the Code of 1892, now under consideration, have remained practically unchanged since the adoption of the Code of 1871. Every person owning property subject to taxation is required to render a schedule thereof, with its value, under oath, and upon a form supplied by the assessor. If the property inventoried is, in the opinion of the assessor, undervalued, he is required to make report thereof to the board of supervisors under oath, and he may add to his roll any property discovered by him not returned by the owner. At stated times, fixed by law, the board of supervisors meet to examine, correct, and equalize the as

sessments, and, this being done, they enter an order approving the rolls. Any person feeling himself aggrieved by any order of the board in reference to the assessment of property may appeal to the circuit court. Two copies of the roll, as approved by the board, are then made by the clerk of the board, one of which is delivered to the collector and the other to the auditor, the original remaining in the office of the clerk. The roll delivered to the collector is the authority by which he collects the taxes levied. It is also provided by law that the collector may add to the roll any property he may discover as unassessed after the roll comes to his possession, making return of such additional assessment to the board of supervisors. If at any time the assessor shall discover that any person or property has escaped taxation in former years, it is his duty to assess the same, making due return thereof with his next assessment, and giving the person who, or whose property, is thus assessed, notice thereof, if he be a resident of the county. The primary purpose, in all just schemes of taxation, is to distribute its burdens equally and uniformly upon all persons and property, | and the requirement of our constitution that all property shall be taxed in proportion to its value, is but the statement in another form of the provision that taxation shall be equal and uniform. If all property was assessed at one-half or one-third its value, the rule of uniformity of taxation would not be disturbed. But the constitution, in providing for the office of assessor, and confining the office to territorial limits of his county, divided the state into as many taxing districts as there are counties; and since, if one rule of valuation should be adopted in one county and another in another, there would not be equality of taxation, it prescribed the standard of valuation for all property in all the counties should be the real value. The office of assessor, spoken of in section 138 of the constitution, is one of known and settled functions; and in providing that an assessor should be selected, in the manner provided by law, for each county, it is to be presumed that the framers of that instrument intended to provide for the performance by him, substantially at least, of those duties which have hitherto pertained to his office. French v. State, 52 Miss. 760. The constitution declares the rule of uniformity and equality of taxation. It fixes the standard of valuation by which the rule shall be preserved and enforced. It provides for the selection of an officer for each county to perform the duties of assessing persons and property. It is silent as to details, leaving to the legislature the power and duty of formulating the scheme of taxation, subject to the restrictions imposed by the general provisions it does contain. Unquestionably, the constitution contemplates and requires an assessment of property as a condition of its taxation. Assessment is the listing and valuation of

property liable to taxation according to law. It is essential for the apportionment of all ad valorem taxes. Cooley, Tax'n, 259. And an assessment can only be made by the officer designated by law to make it. Welty, Assessm. § 10. When the constitution de volves that duty upon a particular person, the legislature may not substitute another. Id.; People v. Kelsey, 34 Cal. 473; People v. Hastings, 29 Cal. 450; People v. Sargent, 44 Cal. 434; Houghton v. Austin, 47 Cal. 646; Richmond & D. R. Co. v. Board of Commissioners, 74 N. C. 506; Wilmington, C. & A. R. Co. v. Board of Commissioners, 72 N. C. 10. In Houghton v. Austin, above cited, the rule that the legislature could not devolve the duty of assessing property upon any other tribunal or officer than the assessor provided for by the constitution was carried to the extent of annulling a law creating a state board for equalization of taxation among the several counties of the state.

It is said by counsel for appellant that the power of the legislature to devolve the duties of the assessor upon others has been recognized in many decisions of this court. First, it is said that in Wolfe v. Murphy, 60 Miss. 1, the act of March 5, 1878, which provided that, if the assessor should fail to complete his roll as required by law, the board of supervisors should "appoint some suitable person to make and complete such assessment-rolls, in the same manner as the assessor is required by law to do," was held to be a valid exercise of legislative power; and, second, that in State v. Adler, 68 Miss. 487, 9 South. 645, the authority of the collector to assess such persons or property as had been omitted by the assessor, as directed by section 513 of the Code of 1880, was also upheld. It would be sufficient to reply that in neither of these cases was the validity of the legislation challenged by counsel, or adverted to by the court. But it is to be observed that the statutes construed in these cases have existed in this state since the year 1846, (Hutch. Code, pp. 185-189, §§ 923,) and were in operation at the adoption both of the constitution of 1869 and of 1890. The Code of 1857 provided that, upon failure of the assessor to make and return his roll as required by law, the board should have power to remove him from office, and to appoint some suitable person to complete the roll; and in Wolfe v. Murphy this court assumed, without expressly deciding, that the effect of the act of 1878 was to authorize the board to declare the office vacant pro tempore, and to appoint an incumbent. The provisions of the statute authorizing boards of supervisors to appoint a suitable person to make the assessment when the assessor has failed to discharge his duty, and conferring power on the sheriff to add persons or property to the roll which have been omitted by the assessor, are widely different in their scope, purpose, and effect from the scheme provided by chapter 126 of the Code in rela