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WARREN et al. v. JONES. (Supreme Court of Mississippi. Oct., 1892.) LANDLORD AND TENANT-LIEN FOR RENT-CROPS -PURCHASE BY THIRD PERSON-PRIORITIES.

1. Where land is cultivated for some months under a partnership agreement between the owner and another, who undertakes the active management thereof, persons who buy produce from the latter after the relation of partnership has been changed to that of landford and tenant cannot claim that the produce is exempt from the landlord's lien for rent on the ground that they did not know of the change of relationship, when it appears that they never dealt with the partnership.

2. The lien of a landlord for rent on cotton produced on the land leased is not affected by the fact that third persons bought the cotton from the tenant without knowledge of the lease, and under representations by the lessee that he had a right to sell it.

Appeal from circuit court, Yazoo county; J. B. Chrisman, Judge.

Action by M. Jones against Warren & Montgomery Bros. for the value of cotton bought by defendants from one R. G. Worsham, a tenant of plaintiff, on which plaintiff claimed a lien. From a judgment for plaintiff, defendants appeal. Affirmed.

Plaintiff and Worsham formed a partnership to cultivate the land belonging to the former, but this was dissolved at the end of two months, when Worsham rented the land.

Williams & Williams and Barnett & Thompson. for appellants. Henry & Richardson, for appellee.

CAMPBELL, C. J. The right result was reached in this case. The theory of the defense was fairly put to the jury by the instructions, so far as related to consent of Jones, that his tenant might sell. The instructions asked by the defendants as to the partnership between Jones and Worsham, and the right of the defendants with reference to that, were properly refused, because they do not state the rule of law on that subject correctly. They assert that the defendants must have had knowledge of notice of the change of the relation between Jones and Worsham from that of partners to that of landlord and tenant. Not having dealt with Jones & Worsham during the brief period of the existence of the partnership between them, they were not entitled to be specially notified, and the instructions might be construed to require this. The fifth and sixth instructions asked by the defendants were properly refused. Neither ignorance of the tenancy nor false statement by the tenant as to his right to sell agricultural products of the leased premises could defeat the claim of the landlord. Eason v. Johnson, 69 Miss. 371, 12 South. 446. The writer of this opinion entertained the view, shared by all composing the court then, announced in Westmoreland V. Wooten, 51 Miss. 325, and he reaffirmed

it in Wooten v. Gwin, 56 Miss. 422, and in Dunn v. Kelly, 57 Miss. 825, and still has the same opinion of the question, as an open one; but as the court, by a clear misconcep tion, as I think, of the views of one of the judges who decided the former cases, in the opinion in the case last mentioned, drifted into the conclusion that a landlord might hold a purchaser with notice liable, I ac quiesced in the doctrine thus accidentally established, because I got tired dissenting, and, besides, regarded the new doctrine as best for the agricultural interest, and made dissent from the opinion in Cohn v. Smith, 64 Miss. 816, 2 South. 244, which, under the strange history of the question, I thought correctly decided. Having reached this result, it followed logically that notice by the purchaser of agricultural products could make no difference, and, in order to protect the landlord, his right must be made to depend not on notice, but on the fact that the defendant purchased what the landlord had a lien on, and thus the law is settled. I was constrained by circumstances, as I think my brethren were, in deciding Cohn v. Smith; but, starting from that, there could be no other goal than that reached. Affirmed.

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1. Where administration is granted on an estate in two states, what was due to decedent as partner in a firm carrying on business in one state is payable to the administrator of that state, though the payment is made in the other state, where decedent lived.

2. Where administration is granted to the same person in two states, and in settlement with a firm of which deceased was a member, and which did business in one state only, he allows a claim for supplies furnished deceased, he is entitled to a credit for such item in that state, though the settlement was made in the other state, in which deceased lived.

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

Petition by Winston Jones, administrator of S. G. Coleman, deceased, to surcharge an account previously filed by him. From a decree adverse to his petition, said administrator appeals. Reversed.

Deceased was a resident of Alabama, and owned property both there and in Mississippi, including a half interest in the firm of Cole

man & Cole, doing business in the latter state. Winston Jones took out letters of administration in both states, and subsequently had a settlement in Mobile with Troy Cole, surviving partner of Coleman & Cole, included in which settlement was a claim of the firm against deceased of $1,193.85 for supplies furnished. In an account filed in Alabama, the administrator credited himself with this item of $1,193.85, and afterwards, on objection by the heirs that the claim pertained to the administration in Mississippi, he filed a petition asking the court of the latter state for leave to surcharge his account previously filed so as to allow him credit for this item. The court decreed that this claim was allowable only out of the Alabama assets. The administrator charged himself with the amount received by him in the settlement with Cole, being the half interest of decedent in the firm.

A. C. Bogle, for appellant.

CAMPBELL, C. J. The record does not show when the deposition of the appellant was taken, nor the circumstances, and, so far as we can discover, there was no ground for suppressing it. The motion to suppress states that it was taken October 24, 1891, without legal notice, while the report of the commissioner shows that it was taken at some time in pursuance of the commission opened by him under the decree of the court. It may have been rightly suppressed be cause of the circumstances under which it was taken, but we cannot say as to this.

The deposition of Troy Cole was not right ly suppressed. He was a competent witness. Gordon v. McEachin, 57 Miss. 834. His testimony shows satisfactorily that Jones, the administrator, has charged himself, as administrator in this state, with $1,193.85 more than he is chargeable with. The interest of the intestate, Coleman, in the partnership assets of Coleman & Cole, constituted Mississippi assets. What was due to Coleman, the deceased partner, on settlement of partnership matters, was payable by the surviving partner, Cole, to the Mississippi administrator. It was paid to him on a settlement made in Alabama. But, although paid in Alabama, it was to be accounted for in Mississippi; and the administrator is charge able only with the sum received by him from Cole, as the sum due Coleman of the assets of Coleman & Cole, after adjusting all matters between them as partners.

The statute of limitations, and other statutes invoked, have nothing to do with the case. The only question is, with what sum is the administrator chargeable by reason of his receipt from Cole of the share of Coleman in the partnership assets of Coleman & Cole? It seems manifest that he has charged himself with a sum, as received on this account, which he did not in fact receive, and that he is entitled to diminish the debits against

him by this much. It seems to us that misunderstanding has resulted from considering the question of paying the $1,193.85 constituting the individual indebtedness of Coleman to Coleman & Cole, whereas the true question is, how much is the administrator chargeable with, by reason of his receipt from Cole of Coleman's share of the assets of the partnership of Coleman & Cole? To the extent that the administrator, in his account, charged himself with more than he received on settling with Cole, survivor of Coleman & Cole, he should be allowed credit. That this may be ascertained, the decree is reversed, and cause remanded.

(No. 11,343.) Nov. 20, 1893.)

(45 La. Ann.) STATE v. TAYLOR et al. (Supreme Court of Louisiana. CRIMINAL LAW-CROSS-EXAMINATION-ScopeCUMULATIVE EVIDENCE.

1. The state should not be permitted in a criminal case to cross-examine a witness for the defense on matters not growing out of facts and circumstances stated in his direct examination.

2. The legality of the cross-examination must be tested by matters stated by the witness in his examination in chief, and not by the consideration of the purpose for which he had been introduced.

3. The court is not justified in permitting one of the defendant's witnesses to be cross-examined as to matters not testified to by him on direct examination, for the reason that the same facts had been testified to by several witnesses, both for the state and the defense, and the testimony was only cumulative.

4. Cumulative evidence on the trial of the cause must not be confounded with cumulative evidence claimed to have been newly discovered, and sought to be made available after verdict as a ground for a new trial.

(Syllabus by the Court.)

Appeal from district court, parish of St. Landry; W. C. Perrault, Judge.

Tom Casey, alias Joseph Thomas, who was indicted with others, having been convicted of larceny, and sentenced therefor, appeals. Reversed.

E. P. Veazie, for appellant. M. J. Cunningham, Atty. Gen., and E. B. Du Buisson, Dist. Atty., for the State.

NICHOLLS, C. J. Lee Taylor, Tom Casey, alias Joe Thomas, and James Martin were indicted in the district court for St. Landry for having feloniously stolen, taken, and carried away a beef. On the trial both Lee Taylor and the present appellant, Joe Thomas, were convicted, and sentenced to hard labor. Taylor acquiesced in the judgment, but Thomas appealed, and the judgment as to him was reversed, and the case remanded for further proceedings. 12 South. 927. He was put upon his trial a second time, and convicted, and from a sentence to 10 months' imprisonment at hard labor he prosecutes this appeal.

His complaints are embodied in three bills of exception. In the first he complains of the exclusion of testimony as to an alleged con

fession made by Lee Taylor after conviction and sentence, as he was about being sent to the penitentiary, to the effect that he (Lee Taylor) alone was guilty of the crime charged; in the second, that one of his challenges for cause was improperly overruled; and in the third, that the state was permitted to cross-examine one of his witnesses as to matters not testified to in chief. We think the statements made by Lee Taylor were properly excluded. They were clearly hearsay. See State v. West, 45 La. Ann. 14, 12 South. 7, and State v. West, 45 La. Ann. 13 South. 173, and authorities therein cited. See, also, the case of Mitchell v. Com., (Ky.) 14 S. W. 489.

to which question the witness answered, "No." Question: "Did you not testify to that effect on the former trial?" Answer: "No, I don't believe I did;" whereupon the witness, being tendered to the state, was cross-examined as to what transpired at the time just previous to the visit made to the defendant's house, on the night of the arrest of the witness, and as to what was said by the defendant at the time of said visit when questioned whether there had been a butchering at his house that day, and as to contradictory statements made by the accused on the occasion of such visit? To such questions, and to further cross-examination on said subject, accused, through counsel, objected, on the ground that the state could not, on cross-examination, question the witness of the defendant as to matters not testified to in his examination in chief, in order to establish its case against the accused; the state claiming the same right to cross-examine a witness as the defendant,-which objection was Overruled, and said questions and further examination allowed by the court on matters not testified to by the witness on his examination in chief being admitted, and further cross-examination permitted on the grounds: "First. That the purpose of the defendant was to establish the fact that a part of the stolen property was not concealed, but in full, open view, and to also show, directly and indirectly, that the witness on another occasion had admitted as a fact that a part of the stolen property was not concealed; and because of this state of facts the court permitted the state to show that the only meat which the witness saw was secreted in an outhouse, which was locked on the inside, the defendant's son being therein; and that, when first interrogated, the defendant denied that a butchering had been made at his

The bill of exception relative to the juror Conkling, who was challenged for cause by the accused, and the challenge overruled, declares that, "the juror being upon his examination on his voir dire, the following questions were asked, to wit: "Q. Have you formed or expressed an opinion in this case? A. Yes. Q. Is that opinion a fixed one? A. Not exactly. Q. Do you feel able to go into the jury box, and do impartial justice as a juror between the state and the defense? A. Yes, if the evidence is the same I heard." The defendant, through his counsel, then challenged the juror for cause. The court thereupon further examined the juror, and he further said he was conscious of no bias or prejudice for the person or against him; further, he did not know whether the reports he had heard were correct or not; whereupon defendant renewed his challenge for cause, which the court overruled on the grounds: (1) "Because the juror was closely examined by the court, by questions, in addition to those enumerated herein, and was satisfied by the juror's examination that the opinion which he had formed would yield to the evidence, and that, notwithstanding said opinion, his mind was free from bias and preju- | house, and subsequently, a few minutes theredice, and that he would render an impartial verdict." (2) "Even had the juror been incompetent, the ruling of the court could not have prejudiced defendant, because of the fact that the juror Conkling did not sit on the jury, having been peremptorily challenged by defendant without exhausting his peremptory challenges, nine challenges remaining in his favor after challenging him." State v. Garig, 43 La. Ann. 365, 8 South. 935. The series of questions asked by the judge of the juror, which satisfied him that the juryman was competent, are not given. We must assume the questions and the answers there to were such as to justify the court's ruling; but, even if it were erroneous, defendant has evidently suffered no legal injury therefrom.

The third bill states that the defendant called to the stand a witness, to whom he propounded two questions: Question: "State whether at the time you and your brother went to the defendant's house on the night of the arrest you saw a piece of meat hanging on the gallery of the defendant's house?"

after, admitted that a beef had been killed and butchered by Lee Taylor. That this evidence was competent on cross-examination, it being closely related-in fact, inseparably connected-with the matters and things inquired about in defendant's examination of the witness, and was proper to rebut the inference that the witness had testified differently on another occasion; and that, if the statements of the witness were illegally allowed, it could not prejudice the defendant, inasmuch as several other witnesses, both for the state and defense, had testified to the same facts. Therefore the testimony of this witness was merely cumulative." Upon a comparison of the two questions propounded to his own witness by the accused, and the answers to the same, with the questions and testimony drawn from that witness on crossexamination by the state, we are of the opinion that the cross-examination was permitted to take a range not warranted by what had been testified to on direct examination. The intention and expectation of the accused

was to establish the specific fact that on the night of his arrest a piece of meat was exposed to full view on defendant's gallery. The question went no further. The answer (doubtless to the disappointment of the ac cused) was in the negative. The testimony elicited utterly failed in its purpose, and the case stood, as to that fact, so far as that witness was concerned, as if he had not been put on the stand. The answer left nothing for the state to rebut or to contradict. Defendant's attempt to prove and failure to prove the desired fact could but redound to his injury. We do not think that by the simple fact of asking the question, the accused opened wide the door to proof of concealment, and to proof of damaging contradictory statements and admissions made by the accused. In allowing the testimony, the judge lost sight of the difference between the purpose which the defendant may have had in view in asking a question and the question itself and its answer. As said by this court in State v. Stuart, 35 La. Ann. 1018: "The legality of the cross-examination in this particular must be tested by the matters stated in his examination in chief, and not by the consideration of the purpose for which he had been introduced." State v. Swayze, 30 La. Ann. 1327. When the accused propounded the second question he evidently intended to challenge the veracity of his own witness, but the answer given negatived the fact he sought to bring out. Be that as it may, we think the subsequent cross-examination was not in aid of sustaining the witness' credit. There was no legal connection between the testimony brought out and the inferential claim on the part of the accused that on a former trial the witness had sworn that on the night of the arrest a portion of the stolen property was exposed on the gallery. The question is not whether the testimony in its character was relevant and admissible, nor whether it could have been properly elicited from other witnesses, or even from this one under other conditions, but whether it could be elicited from him under the exact circumstances under which it was. State v. Wright, 40 La. Ann. 591, 4 South. 486. If this particular witness could not be lawfully cross-examined as he was, the judge was not justified in permitting its being done, for the reason that other witnesses, both of the state and the defense, had testified to the same facts; and the testimony was merely cumulative. Cumulative testimony, on the trial of a criminal case, must not be confounded with cumulative evidence when such evidence is to be used after verdict, as having been newly discovered, as a ground for a new trial. The judge states the accused was not prejudiced, but it may have been on the weight and strength of the testimony of this very witness that the case turned. We do not know what weight the jury might have attached to the testimony of the other witnesses. We decline to dismiss this appeal.

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MCENERY, J. This suit was instituted in the name of the state of Louisiana by the district attorney of the parish of St. James, on the relation of certain resident citizens and taxpayers of said parish, under the provisions of article 201 of the constitution and Act No. 135 of 1880, to remove the defendant from his office as sheriff of the parish of St., James, to which he was elected in April, 1892, and was duly qualified in the following July. The grounds for his removal are set forth in 11 specifications in the plaintiff's petition, charging certain acts of malfeasance, nonfeasance, etc., some of which are alleged to have been committed by him during a previous term of office as sheriff, and others during his present term. The defendant filed exceptions to the petition, which exceptions the district court sustained as to the first, second, third, fourth, and ninth specifications, and to that extent dismissed the petition; and as to the other specifications the court overruled the exceptions. From that part of the judgment sustaining said exceptions the plaintiff and relators have appealed.

The specifications to which the exceptions of the defendant were sustained are as follows: "(1) That said Adam Livain Bour

geois, being then sheriff of the parish of St. James, and having been ordered under a writ of fieri facias, issued on the 29th day of January, 1891, in the suit of J. B. C. Graugnard v. Lucius Forsyth, No. 1,500 of the docket of the twenty-second judicial district court, to seize and sell for cash certain property, to wit, 'Pike's Peak' plantation, situated within the parish of St. James, and the appurtenances thereto, for cash, did fail to sell the same for cash, as ordered, and was thereby guilty of nonfeasance and misfeasance in office. (2) That thereupon and thereafter the said Adam Livain Bourgeois, as sheriff, in the above-entitled cause, did, on the 8th day of April, 1891, make a false return on said writ, in which return he certified that he had sold the property hereinabove described for cash, which was paid to him by the purchaser, when in truth and in fact no cash was demanded or received from the purchaser, but said sale was fraudulent, and said return false and fraudulent, and the said sheriff thereby was guilty of misfeasance, corruption, and gross misconduct in office. (3) That said Adam Livain Bourgeois, sheriff, aforesaid, did on the 17th day of March, 1891, execute a deed to the purchaser at said sale, which deed he filed in said suit June 26, 1891, and specified therein that he had received in payment of the price of said sale and adjudication a certain amount of money in cash as payment, when in truth and in fact no cash was received or paid unto him, the said sheriff, by the purchaser or other person, and said deed was false and fraudulent, and said sheriff thereby was guilty of misfeasance, corruption, and gross misconduct in office. (4) That on the 26th of June, 1891, said cause being on trial, on a rule to distribute the proceeds of the sale aforesaid, said Adam Livain Bourgeois, sheriff, as aforesaid, being called as a witness, and being duly sworn, did depose under oath that he had in his possession a certain portion of the proceeds of said sale in cash, when in fact and in truth said testimony was false and untrue, and said sheriff did not then have in his hands or possession the funds as falsely testified to by him, and said sheriff was thereby guilty of perjury, misfeasance, and gross misconduct in office." "(9) That one David Smith, a resident of the parish of St. James, was on the 2d day of July, 1891, informed against by the then district attorney of the parish of St. James, on four distinct informations, viz. attempt to commit rape, carrying concealed weapons, entering plantation, and assault with dangerous weapon, and four bench warrants were issued by the twenty-second judicial district court for his arrest and detention, and delivered to the sheriff for execution on same day or thereabouts; that said Adam Livain Bourgeois, sheriff, aforesaid, failed to execute said warrants up to this time, although said Smith resided and continued to reside at a point

one mile from the said courthouse, pursuing his usual avocation, and could have been readily apprehended up to January 1, 1892, at which time said Smith became a fugitive from justice on a capital charge, wherefore petitioners charge said Adam Livain Bourgeois, sheriff, aforesaid, with nonfeasance and gross misconduct in office." To the petition of plaintiff and relators the defendant presented and filed the following exceptions: "(1) That the allegations contained in the first, second, third, fourth, ninth, tenth, and eleventh grounds or specifications of said petition do not set forth any cause of action against this exceptor. (2) That the allegations contained in the first, second, third, fourth, and ninth grounds or specifications of said petition do not disclose any cause of action or right of action in the plaintiff and relators herein, because the offenses therein specifically charged against this exceptor are expressly averred to have been committed prior to the date of his induction into the office of sheriff of said parish pursu

ant to his election to said office on the 19th of April, 1892. (3) That the allegations contained in the tenth and eleventh grounds or specifications of said petition are vague, uncertain, and indefinite as to time, place, and circumstances, and wholly insufficient to enable him to make a defense thereto, or to put him on his defense. (4) That this court is absolutely without jurisdiction ratione materiae of the matters and charge set forth in said first, second, third, fourth, and ninth grounds or specifications of said petition, because this exceptor was elected to the office of sheriff of the parish of St. James, and ex officio tax collector thereof, at the last election, held on the 19th of April, 1892, and thereafter duly qualified and was inducted into said office; and the offenses charged against exceptor in the said specifications of said petition are averred to have been coinmitted at a time anterior to exceptor's said induction into office and his present term of office."

The allegations in the first, second, third, and ninth specifications are sufficiently definite and explicit. It was not essential for relators to aver a negative therein. It is very true, the matters contained in said specifications are subject to explanation, as the parties to the suit could have consented to the acts of the sheriff; but this is a matter of defense on the trial of the case. The specifications charge that said acts were misfeasance, nonfeasance in office, and that he made false return on his writ, and that said acts were gross misconduct and corruption in office. These averments negative the fact that these acts were done under the direction and by the consent of plaintiff in exception. The fourth specification cannot be sustained, as the act charged was not done in any official capacity. He was sworn as a witness in the case, and his oath was not an official act. The facts

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