outfit, publishing in his paper that no one except himself had any claim on the property; that until this levy was made no one else was known to the outside public as having any interest in or claim on the property. It is admitted that appellee sold the property as claimed, and had not been paid all the purchase money. Appellant claims under section 4227 of the Code of 1892. On the trial a jury was waived, and trial was had before the court, resulting in a judgment for the claimant, from which judgment Jennings appealed.

E. F. Noel, for appellant.

CAMPBELL, C. J. We have not been favored with any brief or suggestion by the

appellee in support of the judgment in his

favor in the circuit court, and, being unable ourselves, unaided, to perceive why the case is not precisely within the terms of section 1293 of the Code of 1880, so as to cut off the claim of the appellee to a reservation of title, because of the continued possession of his vendee of the property for more than three years, etc., we reverse the judgment, and remand the cause. So ordered.

On Suggestion of Error.

CAMPBELL, C. J. We are now informed that this case was decided by the circuit court on the assumption that it was governed by section 4228 of the Code of 1892, which is supposed to have changed the law as it has been in this state since 1803. The argument is that, by the express declaration of said section, the section immediately preceding, containing the law as to separation of the possession of a chattel, and some claim of right in it by another, without record evidence of such right, for three years, is not to apply to bona fide sales for value; and, as Wilson's sale to Almon was such, his secret claim of a conditional sale is good. This is a misconception of the law, induced by the ill-chosen language of section 4228. The first declaration, although, in terms, embracing the section immediately preceding, is inapplicable to it, and cannot be made to apply to it, even by legislative enactment; for the legislature cannot perform the impossible, and it is impossible, in the nature of things, to predicate a bona fide sale for value of the things specified in section 4227. The language is senseless as applicable to it, and produces absurdity, from which we must save the legislature if we can. The declara

tion applies, and must be applied, to section 4226, and to that only, and has no sort of influence on section 4227.

The next declaration of section 4228 is: "Nor shall it in any case extend to creditors whose debts were contracted after such fraudulent act," etc. What does "it" refer to? By the framing of the section it would seem to apply to the section immediately preceding, but as "it" is singular, and must apply to one, and not both, of the sections, we avail ourselves of the latitude allowed by the use of the singular pronoun to avoid the ridiculousness and absurdity of applying it to the immediately preceding section, and fit it where it sensibly belongs, and has been heretofore since 1803, on the presumption that it was not really the purpose of the legislature to deny to subsequent creditors (the only class really misled, and induced to credit by apparent ownership from continued possession) the right to assert absolute ownership in the possessor because of such possession. In each of these instances we proceed reddendo singula singulis, of which the books afford many illustrations. It follows that, notwithstanding a very awkward form of expression, the law on this subject has not been changed by the Code of 1892, and that the secret claim of Wilson cannot prevail against the creditor of the possessor of the chattel, who held it continuously for more than three years. Reversed.

ALABAMA & V. RY. CO. v. MCAFEE. (Supreme Court of Mississippi. Oct. 30, 1893.) CARRIERS-LIABILITY FOR ACTS OF SERVANTS.

A person who rides on a railroad train without paying his fare, under an arrangement with the train crew, cannot recover from the company for injuries sustained by being pushed from the train by such crew while they were attempting to rob him.

Appeal from circuit court, Rankin county; A. G. Mayers, Judge.

"To be officially reported."

Action by Peter McAfee against the Alabama & Vicksburg Railway Company for injuries received through the wrongful acts From a judgment for plaintiff, defendant appeals. Reversed. W. L. Nugent, for appellant. A. J. McLaurin, for appellee.

of defendant's servants.

CAMPELL, C. J. On the testimony of the plaintiff himself the verdict should have been for the defendant. He shows that he fell among thieves, and in being robbed was. pushed off the car and hurt. He had made an arrangement with the crew in charge of the train to work his way to Brandon, and suffered wrong at their hands; but he has no claim on the railway company for the wrong resulting from the disastrous consequence of his own venture. The people who wronged him were not serving the com

pany in what they did. The whole thing was an unauthorized arrangement to suit the views of the participants, and not to serve the company, and it is not responsible for what happened by design or accident.

The first instruction for the plaintiff is wrong, as applied to this case. It is true that even a trespasser on a train must not be knocked off by the servant of the company engaged about his master's business in putting him off, but that rule has no application here, where the plaintiff suffered injury from his own comrades, engaged, not in serving the railway company, or about its business, but illegally engaged in a scheme of their own, in violation of duty to the company, participated in by the plaintiff. He has no claim against the company he wronged by attempting to ride on its train without paying fare, and must look for redress for the wrong done him to the person who did it. The peremptory instruction asked by the defendant might well have been given. Reversed, and remanded for a new trial.

CRYER v. STATE.

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(Supreme Court of Mississippi. Jan. 1, 1894.) MURDER - INSTRUCTIONS RELEVANCY -ARREST WITHOUT A WARRANT-RIGHT TO RESIST-PROVINCE OF JURY.

1. Where, in a murder case, there is no suggestion in the evidence that deceased was killed by a person not on trial, an instruction relative to the responsibility of defendant for the act of such person is irrelevant, and confusing to the jury.

2. In a murder case it appeared that, at the time of the homicide, deceased, an officer, was attempting to arrest defendant and others without a warrant; that it was doubtful whether any felony had been committed by any one, or whether defendant and such others had been charged, on reasonable cause, with the commission of a felony; and that the offense for which the arrest was sought to be made was not committed in the presence of the officer. Held, that it was error to charge that, if defendant killed deceased, when deceased and others were trying to arrest defendant and others, in order to prevent arrest, defendant is guilty; since such charge either invaded the province of the jury by telling them that the arrest sought to be made was lawful, or incorrectly told them that, if it was unlawful, and defendant killed deceased to prevent such arrest, and not in malice, he was guilty of murder.

Appeal from circuit court, Pike county; W. P. Cassedy, Judge.

Syme Cryer was convicted of murder, and appeals. Reversed.

Price & Sternberger, for appellant. Frank Johnston, Atty. Gen., for the State.

COOPER, J. There is no suggestion in the evidence that Robinson was killed by Ephraim Cryer; indeed, it is shown by all the testimony that he was not. So much of the first instruction for the state as relates to the responsibility of appellant for the act of Ephraim could only confuse the jury, and

should not have been given. It had no relevancy to the issue. The second instruction for the state is fatally erroneous. By law, "an officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted, in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony, by the party proposed to be arrested. And in all cases of arrests without warrant the person making such arrest must inform the accused of the object and cause of the arrest, except where he is in the actual commission of the offense, or is arrested on pursuit." The officer mak ing the arrest on the occasion of the homicide confessedly had no warrant. The evidence leaves it more than doubtful that any felony had been committed by any one, or that appellant "et al." had been charged, upon reasonable cause, with the commission of a felony; and confessedly the offense for which the arrest was sought to be made was not committed in the presence of the officer. The second instruction for the state informed the jury "that, if you believe from the evidence in this case that the defendant shot and killed deceased at a time when deceased and others were trying to arrest defendant et al., and that he (defendant) shot and killed him in order to prevent said arrest, the defendant is guilty as charged, and the jury should so find." This instruction either tells the jury that the arrest sought to be made was a lawful arrest, and was therefore erroneous, because upon the weight of evidence, (Code, § 732,) or instructed the jury that if one unlawfully sought to be arrested resists, and kills the party seeking to arrest him to prevent such arrest, and not in malice, he is guilty of murder. This is not the law, for the killing under such circumstances would be manslaughter, and not murder. Whart. Hom. §§ 225-271. Judgment reversed, and a new trial awarded.

BOWLES v. STATE. (Supreme Court of Mississippi. Jan. 1, 1894.) CRIMINAL TRESPASS - SUFFICIENCY OF EVIDENCE. Tenants of the owner of land inclosed it for a pasture, which, in common with the owner, they used for pasturing cattle. Under the owner's direction, defendant entered the pasture, and drove away cattle belonging to the owner, in spite of the objection of one of the tenants. Held, that defendant was not guilty of trespassing on the land of another, in contravention of Code 1892, § 1320, making such offense punishable by fine.

Appeal from circuit court, La Fayette county; Eugene Johnson, Judge.

Frank Bowles was convicted of trespass

ing on another's land, and appeals. Reversed.

J. W. T. Falkner, for appellant. Frank Johnston, Atty. Gen., for the State.

WOODS, J. The appellant was convicted on a charge of trespassing on the inclosed land of another, under section 1320, Code 1892. Without controversy, the land in question is the property of William Thompson. It is a pasture on which no one resides, and was fenced with wire and other material furnished by the owner. The fence was erected by one Kit Thompson and others, tenants of said William Thompson, for the purpose of pasturage. It is certain, on the record before us, that the land was fenced for the depasturing of the stock of the tenants of William Thompson and of his own stock. Even Kit Thompson, who was a mere tenant renting other lands for tillage from his landlord, William Thompson, when this pasture was inclosed, in the year 1890, and who, we infer, enjoys the use in the same character, still generously says in his evidence, (and it is on the testimony of this witness that the conviction rests:) "I do not deny the right of Capt. Thompson to use the pasture for his own stock." It is altogether clear that William Thompson was the owner and in possession of the pasture, and that Kit Thompson and the other tenants of William Thompson have only the privilege of depasturing their stock therein. The appellant's offense consisted in his having entered the pasture by the express direction and authority of William Thompson, and in having driven therefrom, under the same authority, a cow and calf belonging to the owner of the pasture, over the protest, and despite the objection, of Kit Thompson. This offense is purely imaginary. Kit Thompson's possession, as well as the possession of all other tenants using such pasture, is the possession of the owner, William Thompson. The verdict is not supported by the evidence, and, though the punishment imposed on the appellant is only an exceedingly small fine, justice requires us to rectify the wrong complained of. Reversed and remanded.

SLOAN v. STATE.

(Supreme Court of Mississippi. Jan. 1, 1894.) PERJURY-EVIDENCE-PRESUMPTIONS.

A conviction of perjury before a grand jury is unauthorized where it does not affirmatively appear that defendant was sworn, since the presumption of his innocence overcomes the presumption that the grand jury duly required him to take the oath.

Appeal from circuit court, La Fayette county; Eugene Johnson, Judge.

Lonnie Sloan was convicted of perjury, and appeals. Reversed.

W. V. Sullivan, for appellant. Frank Johnston, Atty. Gen., for the State.

COOPER, J. This prosecution is against a small negro boy, almost a child, for the grave crime of perjury. We confess our gratification in finding the conviction not supported by the evidence, for the woods are full of much larger game for which grand juries might well go gunning. It is difficult to conceive any circumstances under which the question whether appellant was a witness before the justice of the peace could become material in the investigation made by the grand jury, in the course of which the perjury charged is alleged to have been committed. But the indictment charged that this was a material fact, and this averment in the indictment was probably sufficient. Bish. Crim. Proc. § 921. But this allegation required proof, and none was made on the trial. Id. § 935, and authorities there collected. No conviction could have been sustained of perjury as to that matter, and the court should so have instructed the jury. The evidence is not sufficient to show that appellant was in fact sworn before the grand jury. This was a material ingredient on the offense, and should have been established as any other fact in the case. No witness testified positively that he was sworn. The only evidence is that it was the custom of the grand jury to swear all witnesses appearing before it. The presumption that this was done as to appellant is met and put at rest by the presumption of his innocence. Both presumptions are general in character, and guilt cannot be established by mere presumption of discharge of its official duty by the grand jury in this respect. Judgment reversed.

BANK OF WINONA v. WOFFORD et al. (Supreme Court of Mississippi. Dec. 11, 1893.) NEGOTIABLE INSTRUMENTS-ASSIGNMENT-DE

FENSES.

A note payable to order of the maker, and by him indorsed and delivered, is, like a note expressly payable to bearer, not subject to the statute allowing defenses existing between the original parties against a bona fide holder. Appeal from circuit court, Webster county; C. H. Campbell, Judge.

"To be officially reported."

Action by the Bank of Winona against M. T. Wofford and others on a note. Judgment for defendants. Plaintiff appeals. Reversed.

Sweatman, Trotter & Knox, for appellant.

CAMPBELL, C. J. It has long been the settled doctrine of this court that a promissory note or bill of exchange, which passes by mere delivery, and does not require assignment to confer title to it, but as to which the holder derives title independently of indorsement, and by the very terms of the express contract which the maker has issued to the world, is not within the scope and effect

of our anticommercial statute; and that no defense existing between the original parties can be set up in bar of a recovery by one who acquired the paper in good faith, for value, before maturity. Craig v. City of Vicksburg, 31 Miss. 216; Stokes v. Winslow, Id. 518; Mercien v. Cotton, 34 Miss. 64; Holman v. Ringo, 36 Miss. 690; Winstead v. Davis, 40 Miss. 785. The application of the doctrine has been to paper payable in terms to bearer, but a note payable to the order of the maker, and indorsed by him, is, when it comes into being as an enforceable contract, payable to bearer, although not so expressed. It is nothing until indorsed and delivered, and then it is payable to bearer, and transferable by delivery, and all the reasoning applicable to instruments payable to bearer applies in full force to it. It follows that both are on the same footing, and subject to the same rules. Daniel, Neg. Inst. §§ 143, 693; Tied. Com. Paper, § 20; Rand. Com. Paper, § 153; Moses v. Bank, 149 U. S. 298, 13 Sup. Ct. 900. There is no magic in the word "bearer." A contract to pay to bearer is held not to be within the statute referred to, because it embraces only instruments having a payee, and requiring assignment to pass title. Therefore, an instrument which, by its terms, is a promise to pay whoever may bear it, even though the word "bearer" is not in it, must be of the same effect, because of the same nature. It follows that the defense held good by the circuit court is not maintainable. Reversed, and remanded for a new trial.

A railroad company is not liable to a trespasser on its trains for personal injuries caused by the willful and malicious misconduct of its servant, unless the act complained of was done in the discharge of the servant's duty, and within the line of his employment.

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

"To be officially reported."

Action by Robert Harris, a minor, by his next friend, against the Alabama Great Southern Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Fewell & Brahan, for appellant. Miller & Baskin, for appellee.

WOODS, J. The rule of accountability of the master for the wanton or malicious misconduct of his servant declared in the first and third instructions given for the plaintiff below is erroneous. According to these instructions, no matter whether the person injured was a passenger or a trespasser, the railroad company was liable for the willful misconduct of its servant; and, no matter

whether the act complained of was done in the discharge of the servant's duty within the line of his employment, or whether he was accomplishing some private and personal design of his own, wholly dissociated from his duty to his master. These instructions confound the duty of the common carrier to passengers with that to those not passengers, trespassers. The former it is under contractual duty to carry safely; the latter it owes no other duty than that resting upon every human or artificial being, viz. abstention from wanton or malicious injury. The rule announced in the Case of Burke is applicable only in certain particular instances where the contract duty to safely carry exists. We have seen no authority for extending that rule to those whom the carrier is under no obligation to carry at all, and we have declared in the Case of Royston, 67 Miss. 376, 7 South. 320, that we would not extend it. As to trespassers, the rule is that for wanton and malicious injuries the master is liable where the act complained of was done by the servant in the discharge of his duty to, and within the line of his employment by, the master; but if he was accomplishing some purpose of his own, which had no connection with the discharge of his duty to his master, the doctrine of respondeat superior has no application. To the trespasser on its trains, just as the trespasser on its tracks, the railroad company owes precisely the same duty which it owes to all mankind, and this duty is exactly that which each man owes to every other, viz. abstention from wanton and willful injury in the use of one's own property. But is a railway company, unlike all other beings, unlike all other masters, to be held to accountability for the wanton and willful misconduct of its servants, done outside the line of their employment and their duty, and in no way connected therewith, and that, too, to strangers, trespassers it may be? Shall the railway company be made liable for such acts, done, perchance, by a disobedient servant, and in disregard of his duty to his master? We adhere to the reasonable and just rule of affixing legal liability where the master is shown to be responsible for his servant's act done in the discharge of his duty, within the scope of his employment; and this rule is of force in the case at bar, when the carrier was under no contractual obligation to carry safely. Wherefore, for the errors in the instructions named, the judgment of the court below is reversed, and the cause remanded for a new trial.

NICHOLLS et al. v. SUN MUT. INS. CO. (Supreme Court of Mississippi. Jan. 8, 1894.) FIRE INSURANCE-FALLING BUILDINGS. Under a fire policy providing that if the building fall, except as the result of fire, in

surance shall immediately cease, insurance cannot be recovered, where fire breaks out as the result of the fall of the building.

Appeal from circuit court, Tunica county; R. W. Williamson, Judge.

Action by Nicholls & Co. against the Sun Mutual Insurance Company. Judgment for defendant. Plaintiffs appeal. Affirmed. Calvin Perkins, for appellants. F. A. Montgomery, Jr., for appellee.

CAMPBELL, C. J. The judgment is right. The stipulation of the policy is unmistakable, to the effect that if a building fall, except as the result of fire, insurance was immediately to cease. The building fell, not as the result of fire, and fire broke out as the result of the fall of the building. Therefore, the insurer was not liable for the loss. "The fire did not produce the fall, but the fall produced the fire, and the destruction was by the former." 2 May, Ins. § 412; Ostr. Ins. § 248; Wood, Ins. § 85; Fireman's Fund Ins. Co. v. Congregation Rodeph Sholom, 80 Ill. 558; Insurance Co. v. Ende, 65 Tex. 118; and other cases cited in the text-books. firmed.

Af

MCALLISTER v. HONEA. (Supreme Court of Mississippi. Jan. 8, 1894.) FRAUDULENT CONVEYANCES -DEED-EXCEPTIONAMBIGUITY OF DESCRIPTION.

1. That a conveyance in honest payment of a real debt is brought about by the action of other creditors in pressing their claims does not make it fraudulent.

2. Ambiguity of description of land excepted from a conveyance does not make the conveyance void for uncertainty.

Appeal from chancery court, Monroe county; Baxter McFarland, Judge.

"To be officially reported."

Suit by R. A. Honea against S. F. McAllister. From a decree for complainant, both parties appeal. Affirmed on appeal of complainant. Reversed on appeal of defendant.

Clifton & Eckford, for complainant. E. H. Bristow and Houston & Reynolds, for defendant.

COOPER, J. Although the settlement between Mrs. Burkitt and Mrs. McAllister was evidently made necessary, and was in fact brought about, by the action of the creditors of Mrs. Burkitt in pressing collection of their demands by suits, this does not, itself, stamp that settlement as fraudulent, if, in truth, Mrs. Burkitt really owed Mrs. McAllister the amount for which she executed the note and deed of trust and afterwards the absolute deed, which are assailed by complainant. The decisive question is whether the debt was a real debt, and the conveyance made in its honest payment. It is not suggested in the evidence that the value of the land exceeds the sum claimed to have been due; and, if it does not, and the debt was due, it

would be difficult to predicate fraud of the conveyance. While the evidence touching the existence of the debt is not as complete as it might have been made if the parties themselves had testified, we are not prepared to say that the conclusion reached by the chancellor as to the good faith of the transaction is not correct. The decree, on the appeal of Honea, is therefore affirmed.

A part of the land conveyed by Mrs. Burkitt is described as the "north half, less six acres, of section fourteen, township fourteen, range six east, in Monroe county, Mississippi." This description the chancellor held void for uncertainty, and, since there had been no visible change of possession, he decreed that the lien of the judgments under which complainant purchased was superior to the right secured by Mrs. McAllister by her deed from Mrs. Burkitt, or by the deed of trust which had been previously executed, in which the same description of the land appeared. In this the chancellor erred. The ambiguity of description relates not to the land conveyed, but to the six acres excepted. The land conveyed is the north half of the section; the exception is of an undescribed six acres. An exception is the clause of a deed whereby the grantor excepts something out of that which he has before granted by the deed, and to a good exception these things must concur: (1) The exception must be by apt words; (2) it must be of part of the thing granted, and not of some other thing; (3) it must be a part of the thing only, and not of all, the greater part, or the effect, of the thing granted; (4) it must be of such thing as is severable from the thing which is granted, and not of an inseparable incident; (5) it must be such a thing as he that doth accept may have and doth properly belong to him; (6) it must be of a particular thing out of a general, and not of a particular thing out of a particular, thing, or of a part out of a certainty; (7) it must be certainly described and set down. Shep. Touch. 77. Being the act and word of the grantor, it shall, therefore, be taken against him stricte. Id.; Lofield's Case, 10 Coke, 106b. If there be uncertainty as to the exception, the grantee, and not the grantor, shall have the benefit thereof. Jackson v. Hudson, 3 Johns. 375; Jackson v. Gardner, 8 Johns. 308; 2 Devl. Deeds, 979. The exception, and not the deed as to the lands in section 14, was void for uncertainty in the description of its subject-matter. The decree is reversed upon the appeal of Mrs. McAllister, and it results that complainant is not entitled to any relief; wherefore let his bill be dismissed.

WILSON v. PARKER et al. (Supreme Court of Mississippi. Jan. 8, 1894.) LIFE ESTATES-SALE OF FEE BY LIFE TENANT.

1. A purchaser of the fee at a void chancery sale, who, out of the price,-$533,-pays more