received any coupons, nor delivered any to Major Burke for which he gave a check. Never cut off interest coupons and collected them." Under this state of facts,-and a critical examination of the entire record shows no other, it is difficult to resist the impression that this demand of the plaintiff's petition is not made out. The judge a quo charged the jury "that the burden of proof is upon the state to prove the allegations contained in her petition," and that "the proof offered must be sufficient to enable them to grant the relief prayed for." He charged the jury further that if they should "find from the evidence that L. Conroy was the agent of defendant, or did business for him in his own name, then the defendant is only bound by the acts of Conroy while acting within the scope and in the course of said business." This is unquestionably the law, and the plaintiff's counsel did not demur to the charge. It appears evident that whatever agency Conroy had in reference to the checks in question, it did not come within the scope of his employment or defendant's responsibility, and consequently he incurred no liability to the state on that score. There is certainly no evidence to show that the checks were issued in payment of coupons or fraudulent bonds, and particularly in pay. ment of coupons numbered 13, 14, 15, 16, 17, and 18, as charged, though it is clearly shown that they were actually given in payment of coupons, and consequently for a consideration. 2. The second demand of the petition is that for $24,300 as the amount of interest that defendant is alleged to have collected, or which was collected through his procurement on illegal bonds. First enumerating in detail the various bond transactions of the defendant with different persons between the 17th of February, 1882, and December 28, 1885, the petition alleges that "to all of said bonds were attached interest coupons, due from July, 1880, with the exception of bonds numbered 809, 821, 823, 844, 853, 884, and 889, from which said defendant had cut the coupons up to and including coupon No. 20, due January, 1884." And it further alleges that in pursuance of his "agreement, and in consideration of his interest in said transactions with said Burke, defendant did compound by way of account with said Burke as to all of said bonds, and it is true that said Burke did have in his possession coupons of 105 of said bonds, part of which, in August, 1881, he, through his agent, one Cockerton, collected from the state," enumerating them by numbers. There are no other bonds that are indicated by numbers as those from which coupons were clipped by Burke or the defendant and collected from the state, but there are general averments which are sufficiently comprehensive to cover the residue of this particular demand. We have made a painstak * ing examination of the record in the vain endeavor to ascertain the proof upon which the jury rested their verdict in favor of the state on this demand. The proof does not disclose that the defendant personally, or through any agent of his, made any collection of interest coupons while the bonds were in his possession. While the proof does show that the defendant did have many and large transactions in state bonds, aggregating hundreds of thousands of dollars, and many of such dealings with Major Burke, it does not show the number of illegal bonds that passed through his hands; and hence it is a matter of impossibility to trace the various coupons on such illegal bonds. State bonds were marketable, and were daily bought and sold on 'change without suspicion or doubt, and the defendant testifies that he was not aware of any doubt of the legality of the bonds he dealt in until the bond expose of 1889. It is evident that the judge a quo understood the success of plaintiff's case to depend upon proof of a combination or conspiracy between the defendant and Major Burke, as his charge to the jury on that question will attest, for it says: "If you find from the evidence that Burke, state treasurer, wrongfully converted said bonds to his own use, and that the defendant was interested with him in said wrongful and illegal conversion, and assisted said Burke in negotiating said bonds, and in collecting the interest thereon and that the state paid interest thereon from January, 1880, to July 1, 1889, then your verdict must be for the plaintiff for $24,300 interest on said bonds, or whatever portion thereof the evidence before you shows that the state has paid." And "if you find from the evidence that the defendant was not interested with said Burke in said wrongful and illegal conversion, and did not assist Burke, as stated above, then your verdict must be for the defendant on the claim for interest made by the state for $24,300, on $100,000 state bonds." This portion of the charge appeared to have been acceptable to the plaintiff's counsel, as he failed to except thereto, or reserve objection. Quite a number of brokers and bank officials were interrogated with regard to the defendant's transactions in state bonds, without any circumstance being elicited tending to show the existence of such a conspiracy, though it did elicit the fact that there were many of the illegal bonds that figured in those dealings. One witness, who was on particularly intimate business relations with the defendant, speaks of one lot of 180 coupons,-detached coupons, which represented $1,800,-which he is confident of having received from the defendant, or some one of his employes or agents. But he afterwards qualified this statement by saying that he "could not say that they were all handed to him by Mr. Hart, but there were some of them that certainly were." He could not say "that they all were, because there were several different amounts of them." This however, the defendant positively denies. The present treasurer states "that there is in his office no means of telling where any of the illegal payments of interest were made; nothing to show upon what date any of the illegal payments of interest were made." The auditor states that his office had nothing to do with the coupons, and he could not tell whether the treasurer paid out money in payment of interest coupons prior to 1888 or not. A confidential agent of Major Burke was interrogated on the part of the state, and, while he admitted that he handled a large number of bonds for him-over $200,000-by negotiating and borrowing money on them for Major Burke, and some from the defendant, yet he states nothing tending to show any conspiracy or interest in these dealings on the part of the defendant. He says: "There were many and large transactions between Major Burke and Mr. Hart, with which he was familiar. These transactions were conducted through Conroy, and checks passed both ways." A clerk in the office of Major Burke during the time he was treasurer-a gentleman who was evidently upon close business as well as friendly relations with him-was interrogated by the state, and he was asked this question: "Q. Did you ever have any conversation with Mr. Hart, at any time, in relation to bonds? A. Not in relation to any bonds or coupons, or anything of the kind. I met him occasionally. We have always been friends. Q. Did you ever have any conversation with him about the checks? A. No, sir; I never mentioned to him anything in regard to the checks." This witness states that from 1882 to 1888 he had almost exclusive control of the treasurer's office, because Major Burke was frequently absent. After a close investigation of the record, we are unable to agree with the conclusions of the jury on the demand under consideration. There is certainly no evidence of any conspiracy between the defendant and Burke, and there is nothing to show, with any degree of certainty, the amount of interest Burke collected from the state. The state has evidently failed to discharge the burden of proof that the law imposes upon every plaintiff, to make out a claim against the defendant with reasonable certainty. Failing in this, she is not entitled to judgment on this score. 3. On the last proposition of the plaintiff— that the defendant must surrender the bonds enumerated as being in his possession-there is neither much evidence to consider or argument to make. Accepting the doctrine that is announced in Pugh v. Moore, 44 La. Ann. 209, 10 South. 710, (and to which this court stands thoroughly committed,) in reference to the illegality of the consolidated bonds in question, and treating them for the purposes of the argument as absolutely and inherently null and void, on what theory is the defendant to be held to surrender them under a judgment of this court? The bonds claimed are described in detail by their re spective numbers, and the verdict of the ju ry was in favor of the state, commanding the surrender of those described, less certain exceptions already enumerated, and judgment was rendered accordingly, sustaining the writ of sequestration. The writ of seq. uestration does not appear in the record, nor the sheriff's return, showing his action in the premises, notwithstanding an order was made for the issuance of the writ. Referring to the defendant's answer, we find the following admission, to wit: That the defendant was, at the time of the institution of the suit, in possession of 12 bonds of $1,000 each, and 41 of $500 each, aggregating $32,500, of the denomination called "Consolidated Bonds;" but said bonds "had, long prior to the institution of this suit, been, by defendant, pledged as security for debt due by him to persons residing outside of the state of Louisiana, who still hold same." On this question there is but little testimony other than that of the defendant himself, and the substance of it is as follows: That he acquired the $32,500 of bonds mentioned from Major Burke as pledges for money loaned on them; but at the time he had no knowledge of their illegality, and no reason to suspect their validity; but that said bonds are not in his possession. Q. And you gave the consideration which you have already mentioned to him for them? A. Yes, sir. Q. Burke pledged those bonds to you? A. Yes, sir. Q. And you have held them in pledge since? A. Yes, sir. Q. Before the institution of this suit, what had you done with these bonds, Mr. Hart? Where were they at the time this suit was filed,-say on the 25th of February, 1890? A. I pledged the bonds, sir. Q. They were in this state, at the time, were they? A. No, sir. Q. Were they here at the time of the expose of Burke, -say in September, 1889? A. Yes, sir. Q. How long did they remain here after that? A. Oh, some time. Q. Well, about? A. I think that I had given them to the party about a month previous to this suit, to the best of my recollection. Q. A month previous to the institution of this suit? A. Yes, sir. On the trial the judge a quo charged the jury on this question as follows, viz.: "If you find from the evidence that Burke pledged to the defendant bonds not belonging to him, and that defendant gave Burke money therefor, and holds said bonds under said pledge, or that the defendant, after being informed that said bonds were invalid, pledged them to other persons, then I charge you that these facts are no defense to the state's suit for the bonds, and your verdict must be on the bonds for the plaintiff." This part of the charge does not come within the scope and provisions of the defendant's exception, and consequently it may be considered satisfac tory; and, as it is a fact, admitted by de fendant, that he repledged the bonds to parties residing outside of the state, after it had become known that they were illegal and fraudulent, such pledge is no defense to the action of the state, on the theory of the cases of Pugh v. Moore, 44 La. Ann. 209, 10 South. 710, and Herwig v. Richardson, 44 La. Ann. 703, 11 South. 135. See, also, State v. Hart, 14 South. 507, (No. 10,652, just decided.) While it is true that these bonds are not actually in possession of the defendant, technically they are, same having been pledged only, and may be recalled at any time the debt is paid. Under these circumstances this court, in the exercise of its equity powers, may decree the right of the state to have and recover said bonds from the defendant, and to declare them absolutely null and void in his hands, or that of any present or future holder thereof. On the admissions of the defendant in his answer, the judgment should be so amended as to make it correspond, in respect to the numbers and amounts of the bonds, with the allegations of the petition; and it should be further altered and amended so as to reject and disallow the plaintiff's money demands. The judge a quo charged the jury that they must not entertain, in any manner, defendant's reconventional demand, stating that, although it is styled a reconventional de mand, it is a claim and suit against the state of Louisiana, and the state cannot be sued, directly, or indirectly, in her own courts, without legislative permission. Of a similar reconventional demand we had occasion to express the following opinion in the case of State v. Hart, (No. 10,652, just decided,) to wit: "In so far as the defendant's reconventional demand is concerned, little need be said, for the reason that it merely alleges the legality and binding force of the bonds in his hands as obligations of the state. And, inasmuch as, in the course of our opinion on the merits of the principal demand, we were necessitated to pass upon the primary validity of the bonds, there is nothing left in the reconventional demand to decide, we therefore pretermit any expression of opinion on the question of law raised with regard to the jurisdiction and authority of this court to render a judgment against the state." To that opinion we adhere. It is therefore ordered, adjudged, and decreed that the judgment appealed from be so amended as to make the numbers, amounts, and description of the bonds to be surrendered to correspond with the averments of the petition, and further amended so as to reject and disallow the demand of the plaintiff for the restitution of interest collected; and, as thus amended, the judgment is affirmed, with costs of appeal taxed against the plaintiff and appellee. PARLANGE, J., not being a member of this court at the time of the argument and submission of this cause, takes no part in the decision MCENERY, J., absent, (sick.) HERRING v. MOSES et al. (Supreme Court of Mississippi. Jan. 22, 1894.) TAX SALE-SUFFICIENCY OF DESCRIPTION FAILURE TO SELL IN PARCELS-EFFECT. 1. A tax deed describing the land conveyed as the "west part section 7, township 7, range 2, 300 acres,' is not void for uncertainty of description. 2. A sale by a tax collector of a 300-acre lot in a parcel, instead of in 40-acre parcels, as required by Code 1880, § 521, vitiates the sale, even though there had never been a subdivision of the section containing the lot, by governmental survey. Appeal from chancery court, Franklin county; Claude Pintard, Chancellor. Bill by James Edgar Herring against A. and M. Moses for the confirmation of a tax title. Decree for defendants. Plaintiff appeals. Affirmed. Cassedy & Cassedy, for appellant. R. H. Thompson, for appellees. WOODS, J. The appellant exhibited his bill in the chancery court of Franklin county, praying confirmation of his tax title to the lands named herein. The lands were purchased in March, 1890, at tax sale; and the collector's deed to appellant describes them as the "west part section 7, township 7, range 2, 300 acres." The answer to the bill sets up two defenses, viz. (1) the insufficiency of the description of the land; and (2) the failure of the sheriff and tax collector to offer the lands in 40-acre lots. The agreed statement of facts on which the case was tried shows that the land was offered and sold in one body, and not in 40-acre lots, and that the section (7) had been surveyed by the government of the United States, but had never been divided into any lots, and that the section was fractional; an old Spanish grant, on its east side, giving it an irregular shape. Neither the irregular eastern outline of the section, nor the admitted fact that there had never been any subdivision, by actual governmental survey, into 40-acre lots, in any wise affects the questions involved. If the description of the land found in the deed be applied to the section, there will be found to be no difficulty in identifying the thing conveyed. Without the slightest difficulty or uncertainty, the 300 acres in the west part of the section may be ascertained in the manner more than once pointed out in former decisions of this court. Tierney v. Brown, 65 Miss. 563, 5 South. 104, and other cases. Mrs. Parmeter is the owner of 75 acres in the northwest corner of the section, and Williams or Rowland is the owner of 8 or 11.69 acres in the west half of the section, and the taxes on their lands had been paid, or if any other person owned any part of the section covered by 300 acres laid off in the west part of the section, no serious embarrassment could arise, for the tax deed would cover the 300 acres in the west part, less the Parmeter If tract, and less other tracts in the same west part, situated as these smaller parcels appear to be. The deed, in its descriptions, is sufficient to convey the 300 acres assessed to unknown owners in the west part of the section, less the lands in the same area assessed to other persons. The first defense is there fore without merit. Was the sale void because the land was not offered in 40-acre lots? We have already said that it was immaterial whether the section had ever been subdivided into lots of 40 acres by governmental survey, by lines laid out on the ground. Given a survey by the government, marked out on the ground and evidenced by field notes, a subdivision into quarter sections, and these, again, into four equal parts, can be readily made. But, if the section had been so irregular as to be insusceptible of equal subdivision into quarters and eighths, still the whole body of land should not have been offered at once, but lots of 40 acres, as required by law. The correctness of this view is manifest on an examination of section 491, Code 1880. "In assessing land, a description of it as a part of a designated tract or division, shall be held to embrace such part as is the subject of separate ownership as one tract or division, whether owned by one or several jointly; and when part of a designated tract or division shall be sold for taxes, the sale shall pass the title of such part as was the subject of such separate ownership when it was assessed; and the sale of a specified number of acres of a tract containing more or a specified portion of a tract, shall pass an undivided interest in the whole tract equal to the proportion which the number of acres or portion sold, bears to the whole tract." It is clear that a perfect compliance with the law requiring offerings in 40-acre lots was feasible in the case at bar, for, in the absence of any survey into eighths of sections, a sale in 40-acre lots would certainly have passed an undivided interest in the whole tract, equal to the proportion which the number of acres sold bore to the whole tract. Affirmed. CAMP et al. v. DAVIS et al. (Supreme Court of Mississippi. Jan. 22, 1894.) VERDICT-RESPONSIVENESS TO PLEADINGS. Where plaintiff has amended by joining his partner, and the suit is prosecuted as by the partnership, a verdict cannot stand for more than the partnership claim, though the excess be due the original plaintiff as an individual. Appeal from circuit court, Pearl River county; S. H. Terral, Judge. Action by Davis & Markel against Camp & Hinton. Judgment for plaintiffs. Defendants appeal. Reversed. G. W. Ellis, for appellants. Nugent & McWillie and Evans & Evans, for appellees. CAMPBELL, C. J. This judgment must be reversed, because it is manifest from the testimony of the plaintiff that Davis & Merkel were not entitled to recover what the verdict was rendered for; and of course Davis, alone, who was shown to claim individually a considerable part of it, could not recover after the amendment, which converted the action into one in favor of Davis & Merkel. Reversed, and remanded for a new trial. ALABAMA & V. R. CO. v. MAYOR, ETC., 1. Where the right to change its route has been granted unconditionally to a railroad company, and it has abandoned the former location, it owes no duty to bridge or fill up a cut in such location. 2. The facts that the company, for a long time after the change, maintained a bridge over the cut, and that the United States court recog nized the propriety of bearing the expense of a bridge as a charge on the assets in the receiver's hands, does not create a liability on the part of the company. Appeal from circuit court, Rankin county; A. G. Mayers, Judge. Action by the mayor and aldermen of the town of Brandon against the Alabama & Vicksburg Railroad Company to compel defendant to bridge or fill up a cut on its former location. There was judgment for plaintiff, and defendant appeals. Reversed. Wm. L. Nugent, for appellant. CAMPBELL, C. J. There is no liability on the appellant as to the matter involved in this action. It would have been well for the legislature, in granting leave to abandon the former location in Brandon, to have imposed, as a condition, the filling up the cut or keeping a bridge over it; but the right to change the route of the railroad was given unconditionally, and, when the old location was abandoned, all duty as to the cut was at an end. The facts that for a long time after the change the bridge was kept up by the company, and that the court of the United States which appointed a receiver for the road recognized the propriety of bearing the expense of a bridge as a charge on the assets in the receiver's hands, in no way altered the legal aspect of the case, and did not create a liability that otherwise did not exist. It is unfortunate that the interest of Brandon was not better guarded by the legislature in dealing with the subject; but it it not the province of the courts to supply the want of legislative care, and the consequence of such want of care must be borne without redress, which could be given, in the way sought by this action, only by a disregard of the right of the railway company. Reversed. and judgment on the agreed case for the ap pellant, with costs in both courts. FIRST NAT. BANK OF MERIDIAN v. COCHRAN et al. (Supreme Court of Mississippi. Oct. 30, 1893.) ATTACHMENT-INTERVENTION-COLLUSION OF PAR TIES. 1. A creditor intervening under Code, § 174, in an attachment against a firm, on the ground that plaintiff's claim is "fictitious or simulated," as not owing by the firm, but, if at all, by one partner, cannot question the sufficiency of plaintiffs' declaration, nor move for an itemized account of their claim. 2. The fact that plaintiffs have paid defendants cash to withdraw their plea traversing the grounds of attachment does not suggest that "the attachment was sued out by collusion" between the parties, so as to authorize intervention on that ground. Code, § 174. Appeal from circuit court, Lauderdale county; S. H. Terral, Judge. Action with attachment by Cochran & Bozeman against Litchenstein & Metzger for the value of services rendered. Appeal of intervener, the First National Bank of Meridian, from a judgment sustaining the attachment. Affirmed. Hamm, Witherspoon & Witherspoon and Miller & Baskin, for appellant. Cochran & Bozeman, in pro. per. COOPER, J. The appellees sued out an attachment against the firm of Litchenstein & Metzger upon a claim of $600 for services rendered by them to said defendants as attorneys at law. The appellants, creditors of the defendants, petitioned for leave to intervene under the provisions of section 174 of the Code, which provides that "any creditor of the defendant in attachment, upon filing a petition, under oath, averring that he is a creditor, and that the grounds of attachment alleged are untrue, or that the attach ment was sued out by collusion between the plaintiff and defendant, or that the debt claimed by the plaintiff is fictitious, or simulated, in whole or in part, or any other fact showing fraud or collusions in suing out the attachment, may intervene, and make defense, and in such case the facts stated in the petition shall be tried," etc. By their petition the interveners stated that "the debt claimed by said Cochran & Bozeman was not owing to them by the said Litchenstein & Metzger, but was a debt due and owing, if at all, by the defendant W. Litchenstein, and so said debt or claim was, as a debt or claim against said Litchenstein & Metzger, fictitious, as petitioners believe and state and charge, and that the partnership property of said Litchenstein & Metzger was not liable to said writ of attachment, the said Litchenstein & Metzger being wholly insolvent. Since the only fact stated by the interveners in their petition was that the debt claimed was not due by Litchenstein & Metzger, but was due, if at all, (which fact was not denied,) by the defendant Litchenstein; and, since the statute expressly declares that the trial upon the intervention shall be of the facts stated in the petition, it would seem that a very narrow question was presented in the lower court. Having been admitted to defend, and having selected the issue they desired to make, the interveners at once began to make exception to the sufficiency of the plaintiffs' declaration, and to move for an itemized account of the services rendered, and took exception to the action of the court in overruling their exceptions and applications, and such action is now assigned for error. We are unable to see in what manner these matters concerned the interveners, in the light of the issue they had presented. They did not contest the existence of the claim asserted by the plaintiff's otherwise than to assert it to be the individual debt of Litchenstein, instead of being a firm obligation. That the sum demanded was reasonable in amount, and due by Litenenstein, was not disputed, or attempted to be. The sole contention was that the firm was not bound, and therefore its property could not be subjected to the payment of the debt. We can see nothing in the evidence even tending to prove the fact stated in appellants' petition, and no other result than that reached in the lower court could be permitted to stand. During the investigation it was made to appear that the plaintiffs in attachment had paid to the defendants, or to their attorneys for them, $300 in cash, in consideration of the withdrawal by the defendants of their plea traversing the grounds upon which the attachment was sued out. The interveners thereupon asked to be permitted to so amend their petition as to charge that the attachment had been sued out by collusion between the plaintiff's and defendants. The court refused to permit this to be done, and this is assigned for error. The action of the court in this respect was correct. The fact that the plaintiffs, after the institution of their suit, found themselves unable to maintain the truth of the averments upon which the attachment was sued out, and thereupon paid the defendants not to interpose or to withdraw their plea putting in issue the said grounds of attachment, does not suggest that it had been sued out by collusion with the defendants. On the contrary, it suggests that the defendants were thriftily making profit of their advantage over their creditors by converting into concrete cash their abstract rights of defending the suits brought against them. In fact, it appears that the intervening creditors, who themselves had sued out attachments, had also paid to these insolvent defendants $750 in money, in consideration (in part, at least) of which they had withdrawn their plea to the action of these creditors. If bargains of like character were made by these defendants with all attaching creditors, they should then be in very comfortable circumstances. They have, in any |