action by the county. This payment was made September 3, 1888, and his bill against them was exhibited October 20, 1890. The decree is reversed. ILLINOIS CENT. R. CO. v. TURNER. (Supreme Court of Mississippi. Dec. 18, 1893.) NEGLIGENCE-QUESTION FOR JURY. The court properly refused to direct a verdict for a railroad company in an action against it for personal injuries, where it was not clearly shown that the conduct of its servants was free from negligence, and where it was an open question as to plaintiff's contributory negligence. Appeal from circuit court, Yalobusha county; Eugene Johnson, Judge. "To be officially reported." Action by Daniel Turner against the Illinois Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed. Mayes & Harris, for appellant. R. F. Kimmons, W. S. Chapman, and P. C. Chapman, for appellee. and the public was accustomed to walk over it generally. The injury was inflicted by the movement of a switch engine used to move cars in the yards of the railway company and in the making up of trains. This engine ran, day and night, over all the tracks, as occasion required, and was accustomed to ring its bell or blow its whistle in running over Cemetery street crossing, the belief prevailing that the statute so required. The switch engine was pushing two cars in front of it,-one a flat, and the other a box,-and neither the engineer nor fireman could see a person on the track in front of them, unless at some distance. Turner, the appellee, was employed by the agent of Sproat's Ice Car, which seems to have been, in part, at least, what counsel for appellant denominates a "traveling green grocery." This car was the property of Sproat, and was hauled from place to place as part of appellant's local freight train. At Water Valley, when this train was going north, the custom of four years' standing was not to stop Sproat's car at his ice house, (as was the custom when the train was going south,) or at the station house, but Sproat's employes met and unloaded their car, so far as needed or practicable, at any point where it chanced to be, whether stationary or moving slowly. This was the established custom of the parties, as clearly appears. On the occasion in question the appellee had met the train and car first at the ice house, and had unloaded some cabbages at that place. The train then starting north, appellee followed it to Cemetery street crossing, and there received an armful of cabbages from the car, carried them across main track and house track, and deposited them in Main street, near his wagon, went back across the tracks for another load, and again filled his arms with cabbages, turned, and walked about six or eight feet, to the main line, and just as he stepped on it, was WOODS, J. We shall consider only that assignment of error pressed upon our attention by counsel for appellant in oral argument and in his brief, viz. the refusal of the court below to charge peremptorily for appellant. The rule authorizing and requiring such charge has been so repeatedly and so fully stated by us in recent cases that we find it unnecessary to attempt its announcement afresh, and we proceed at once to consider the material points in the evidence doubtful on the trial below. In the town of Water Valley, where the injuries complained of by the appellee were received, there are four parallel tracks of the appellant's railway. The one lying furthest west, and near the depot, is known as the "house track," | struck, knocked down, and run over by the the one next is the "main line track," the third is called "caboose track," while the fourth and most easterly is styled the "office track." Cemetery street, one of the most frequented thoroughfares in the town, crosses these four tracks at a right angle just north of the depot. The caboose track connects with the main track by a switch at a distance variously stated to be 35, 40, and 50 yards south of Cemetery street, and, extending beyond the main track, connects caboose track with house track also. Beyond these switch junctions the tracks swerve in a considerable curve to the east, so that the view of main track would be wholly cut off by a train on caboose track whose end lay on the switch connecting the two tracks. In other words, a person on the main line, looking southward down the track, would see only from 35 to 50 yards, if the tail of a train on caboose track lay on the switch across the main track. At the point where the injury occurred, the surface of the ground was level, train being moved by the switch engine. The rate of speed of the switch engine at the time is put by the witnesses for the appellee at 15 or 20 miles an hour, and by the testimony of these witnesses the switch engine and its train ran 75 or 80 yards before stopping after having run over the appellee, as would have been expected if the rate of speed was as described. From the same sources of evidence it appears that no signal or warning was given by this rapidly moving train, and no lookout was kept on the cars so being pushed in front of the switch engine, to give an alarm if necessary to protect those who habitually used the grounds for crossing and recrossing the tracks at the place where appellee was hurt. That the engineer of the switch engine was aimlessly running his train at that time is admitted, for he says he saw that the local freight, (a long train. as he and his fireman both state,) was slowly moving towards-perhaps was partially on-the main line, beginning to make its way north from Water Valley, and that he could not continue his run on the main line more than about 100 yards north of the spot where appellee was knocked down until such time as this local freight had proceeded on its route and opened the main line to him. The appellee's evidence shows that, when he returned from the place of deposit of his armful of cabbages on Main street to the Sproat car at Cemetery street crossing, he did look and listen, but neither saw nor heard anything; but he could only see to the intersection of main track by caboose switch, because the tail of the local freight, of which Sproat's car formed a part, lay on and across the switch over main track, whereby his vision was cut off from the track south of that point. Appellee also says: "It seems like I looked when I started back with the armful of cabbage, when I was struck. 串 I think I looked up and down the track when I went across." The appellee says further: "The switch engine gave me no warning. If it had, I would have stopped." In all this evidence, it cannot be affirmed that appellant so perfectly indicated the conduct of its servants as to make it clear that it was free from negligence, and so leave no place for a reference to the jury for its finding. It seems equally clear that the contributory negligence of appellee was an open question, and properly referable, on the facts admitted and disputed, to the determination of a jury. This course was wisely adopted by the court below, and the jury has found the controversy adversely to appellants; and correctly so, as we think. Affirmed. A sale, under execution, of land subject to a mortgage will not be vacated at the instance of the execution creditor for inadequacy of price, in the absence of a showing of the value of the equity of redemption. Appeal from circuit court, Leflore county; R. W. Williamson, Judge. Appeal by A. Baldwin & Co. and others from a judgment overruling their motion to vacate a sale, made under execution in their favor, at which J. H. McGee was the purchaser. Affirmed. E. F. Noel, for appellants. Hooker & Wilson, for appellee. WOODS, J. This is an appeal from a judgment overruling a motion to set aside and vacate a sale of a house and lot, made under execution in favor of appellants, which appellee became the purchaser of. The motion rests upon two grounds: (1) Because of the inadequacy of the price paid by appellee at said sale; (2) because of accident and mistake made in the time and manner of said sale. It is sufficient to say, on the first ground, that the agreed statement of facts shows that this house and lot, with other property, the description and character and probable value of which nowhere appear in the record, was under mortgage, then and at the time of the trial unsatisfied, to the extent of $8,000. Now it is manifest that, on this showing, the appellee acquired only the equity of redemption in the property of the mortgagor, the debtor in execution of the appellants, and it is equally manifest that there is a total failure to show that this equity of redemption was worth anything whatever. It may be worth more than the small sum paid for it by appellee. It may be absolutely worthless. The second ground of the motion is without support. The only evidence on this point is that the appellants were nonresidents and had committed their interests wholly to their resident counsel. The counsel expected to attend the sale and bid in the property for their clients, unless it brought something like what counsel thought its value; but, unexpectedly, counsel were not present, and appellee became the purchaser. It is perfectly certain that the contention is without any merit whatever. The judgment of the court below on the motion was not erroneous, and it is affirmed. 1. In an action against a railway company for damages to a shipment of cattle, the unsworn statement of an unknown person to the account of sales of the cattle was hearsay. 2. A verdict against a carrier for damages to a shipment of cattle was not supported by the evidence where it failed to show the value of the cattle "at the time and place of shipment." and the contract of carriage had provided that such value should govern a settlement for damages to the shipment. Appeal from circuit court, Yalobusha county; Eugene Johnson, Judge. "To be officially reported." Action by William R. Langdon against the Illinois Central Railroad Company for injury to cattle shipped. From a judgment for plaintiff, defendant appeals. Reversed. Mayes & Harris, for appellant. A. B. Fly, for appellee. WOODS, J. The second assignment of error is well taken. The accounts of sales of the two car loads of cattle, admitted over appellant's objection, were incompetent. They were mere hearsay,-the unsworn statements of an unknown person. The fourth assignment of error is also maintainable. The verdict was not supported by proper evidence. It was found without evidence at all on a material point involved in the issue made up between the parties. By the terms of the contract of carriage between the parties, it is agreed "that, should damage occur for which the company may be liable, the value at place and date of shipment shall govern the settlement," etc. We have looked in vain to find any evidence showing the jury what the value of the cattle was "at the place and date of shipment." It may be proper to add that the instructions in which the jury was informed that only gross negligence would impose liability upon the railroad company were incorrect, but these too favorable charges for the appellant were of no avail with the jury in a case where it is doubtful if there was even negligence in the transportation of the cattle. WESTERN UNION TEL. CO. v. CLARKE et al. (Supreme Court of Mississippi. Dec. 18, 1893.) TELEGRAPH COMPANIES-DUTY TO "TRANSMIT CORRECTLY "-STATUTORY PENALTY. Code 1892, § 4326, which imposes a penalty on telegraph companies for failure to "transmit correctly," requires substantial accuracy in transmission, but not an exact reproduction of the message as written by the sender. Appeal from circuit court, Lee county; Newnan Cayce, Judge. "To be officially reported." Action by C. D. Clarke and others against the Western Union Telegraph Company for a penalty for failure to transmit messages correctly. From a judgment for plaintiffs, defendant appeals. Reversed. Sykes & Bristow and Mayes & Harris, for appellant. Clarke & Clarke and W. D. Anderson, for appellees. CAMPBELL, C. J. Section 4326 of the Code of 1892, in embracing the requirement to "transmit correctly," as well as deliver in a reasonable time, messages, did not intend to impose a penalty for a departure from the exact terms of the message, where no harm was done and the message was transmitted with such substantial accuracy as to perform its office and effect its purpose. If the message transmitted and delivered must be a reproduction, verbatim et literatim et punctu atim, of that written to be sent, or the penalty denounced by the section may be recovered, the statute is needlessly severe. No interest requires such nicety, and it may be justly assumed that the legislature had in view not only "reasonable time" for delivery, but reasonable conformity to the terms of the message, so as to present it to the sendee in such terms as to effect the purpose for which it is sent. Where harm results, damage accrues, and the statutory penalty is given; but where, as in this case, no harm was done an inadvertent departure from the letter of the message does not incur the penalty. The legislature must have meant to require to transmit correctly, in substance, not mere form. It had regard to the thought, and not the mere symbols of the message. Otherwise, any departure would subject to the penalty, which would be unreasonable. Can it be supposed that for changing my signature or address from Campbell to Camel, or Campel, or Cambelle, or Cawmel, according to the form of writing it sometimes met with, in a message sent by me or to me, and promptly delivered, and accomplishing its purpose, and doing no harm, the penalty would be incurred? To so hold would impute to the legis lature a spirit of injustice and cruelty that would seriously reflect on its attempt to legislate in this matter for the public interest. To limit the operation of the section as we do is to secure all by it that will subserve the interest of the public, which is the object of the law. The plaintiff was not entitled to recover the penalties, or the cost of the messages, which were transmitted and accomplished their purpose. Reversed, and remanded for a new trial. as to the result of an election to be recorded on the minutes of the board, it is immaterial that it was spread on the minutes of the board at a special and unauthorized meeting, the board not being required to act on the return of the report. 2. Under the provision of the act that the commissioners of election shall canvass the returns of the inspectors, and ascertain and determine the result, and make a verified report of the result declared by them, it is not necessary that they shall certify that they have canvassed the returns, and that the result reported was derived from such canvass. 3. Nor is it necessary that the report show that the election was held at the places fixed by law, as that is to be presumed. 4. Under Code 1892, § 1621, requiring courts to take judicial notice of the result of local option elections, the supreme court may, on appeal from a conviction for illegal sale, go outside the record to see whether the report of the commissioners was verified so as to make it legal evidence of the result of the election. Appeal from circuit court, Rankin county; A. G. Mayers, Judge. D. J. Puckett was convicted of selling liquor in violation of the local option law, and appeals. Affirmed. A. J. McLaurin, for appellant. Frank Johnston, Atty. Gen., for the State. of August, 1890. On the trial the state, for the purpose of proving the adoption of the local option act in the county of Rankin, introduced in evidence the minutes of the board of supervisors, containing what purported to be a report of the commissioners of the election held under the provisions of the local option statute. The defendant objected to said minutes (1) because they were the minutes of the board at a special term not called or held according to law; (2) because there was no order of the board of supervisors for an election to be held at the places of holding elections for members of the legis lature in Rankin county; (3) because the report does not certify that said commissioners of election canvassed the returns made to them by the inspectors; (4) because said report does not certify that said commissioners determined the result of a canvass of the returns of the inspectors; (5) because said report does not show that the election was held at places for holding elections for members of the legislature in Rankin county. In addition to these objections, it is now also urged that the report of the commissioners was not verified by their oaths, as required by law. It is immaterial that the report of the commissioners was spread upon the minutes of the board of supervisors at a special and unauthorized meeting, instead of those of a regular and legal session. The board was not authorized or required by law to take any action upon the return of the report of the commissioners; but, to preserve in a perpetual memorial the report of the commissioners, the law provided that it should be spread upon the minutes of the county board. It is the report, however, of the commissioners which gives finality to the election; and copies of the report, whether made from the original or from the copy on the minutes, are made competent as evidence of the result of elections held under the act. McDonald v. State, 68 Miss. 728, 10 South. 55. It is not true that no order was made for an election to be held at the places of holding elections for members of the legislature in Rankin county. This does not appear in the report of the commissioners, but it does appear in the order of the board found on page 10 of the record. The law does not require that the commissioners of election shall certify that they have canvassed the returns made to them by the inspectors of election, and that the result reported was derived from such canvass. The act directs that they shall canvass the returns so made, and shall ascertain and determine the results, and shall within 10 days after the election make a written report to the board of supervisors, verified by their affidavits, of the result so declared by them upon such canvass and return. It is the result alone which is to be reported by the commissioners, though in reaching the result the law declares how and on what it is to be based. Nor was it necessary for the report to show that the election had been held at the places fixed by law. That is to be presumed. But the act does require that the report of the commissioners shall be verified by their affidavits; and, if this was not done, there was no legal report, and therefore no legal evidence of the result of the election. By what sort of stupid blundering the joint report of the commissioners was omitted from the minutes of the board of supervisors, it is impossible to conjecture. But that it was omitted we have discovered by correspondence with the custodians of the record. By section 1621 of the Code of 1892, the courts are required to take judicial knowledge of the result of local option elections; and, since no sources of information are pointed out, it is incumbent on this and all other courts to inform themselves by recourse to any and all sources of information. We have therefore pursued the investigation by seeking to inform ourselves of the condition of the original report, which it would seem it should have occurred to the district attorney on the trial to do, and from that investigation have learned that in fact the report of the commissioners was verified by their oaths. This is all that the law requires, and is the sufficient and conclusive evidence of the fact that the result of the election was against the sale of intoxicating liquors in Rankin county. The appellant was therefore properly convicted, and the judgment is affirmed. COFFEE v. RAGSDALE. (Supreme Court of Mississippi. Dec. 4, 1893.) EXECUTORS' ACCOUNTS-FINAL DECREE - ADJUDICATION Where a final account and exceptions were considered, but no decree made, and next term there was entered, as of the former term, an order called a "final decree, "which, assuming to pass on the exceptions and fix executors' allowances, ordered a restatement, and permitted exceptions, "the matter" to abide the filing thereof, there was no adjudication, and, on the hearing of the restated account and exceptions, the chancellor erred in announcing that he should abide by his predecessor's rulings, except on production of new evidence. Appeal from chancery court, Lauderdale county; R. C. Beckett, Special Chancellor. In the matter of the final account of L. A. Ragsdale, executor. Appeal of Mrs. E. C. Coffee, exceptant from the final decree of settlement. Reversed. Fewell & Brahan, for appellant. J. R. McIntosh, A. J. Russell, and Houston & Woods, for appellee. ALEXANDER, Special Judge. Although the final account of the executor, and exceptions thereto by appellant, were regularly before the chancery court at the February term, 1891, and seem to have received full consideration, the term was allowed to pass without any decree being signed or entered. At the following July term, counsel for the executor presented what purported to be a final decree, which was then signed and ordered to be entered as of the previous term. But it was in no sense a final decree. It adjudicated nothing. True, it assumed to pass upon the several exceptions, and fixed allowances to the executor for commissions and counsel fees, but it directed the account to be restated, and provided that "the matter" should abide the filing of such account. Moreover, the same order that permitted the filing nunc pro tunc of the so-called final decree "gave appellant leave to file exceptions to the final account to be restated. When the restated final account and the exceptions came to be heard at a subsequent term, the special chancellor, presiding, correctly held that nothing done by the former chancellor possessed the force of adjudication. Nevertheless, he announced that he would adhere to all the rulings of his predecessor, unless an extraordinary case were made out by the introduction of new evidence. In other words, he declared that the court possessed the authority to allow any or all the exceptions, but would not do so unless evidence not before presented should be produced. Thus, counsel for the exceptor were allowed to introduce evidence in support of the exceptions, but were told in advance that it would not avail unless that presented was in the nature of newly-discovered evidence. It was error thus to limit the character and force of the evidence. It necessarily resulted in hampering the exceptor in presenting her case; and the rulings of the court on the evidence introduced under this limitation, which is the only evidence in the record, show that it was for the most part held to be of the same character as that before introduced, and was therefore not considered. Finding nothing adjudicated, the special chancellor should have passed upon the restated final account and the exceptions thereto, without regard to any views entertained by the former chancellor. By failing to embody those views in a final decree, or even to preserve the evidence taken on the former hearing, court and counsel lost their labor, and there was nothing in what had been done that ought to have influenced the court when, at a subsequent term, it was called on to pass upon the same questions. Reversed and remanded. CHANDLER v. WHITE. (Supreme Court of Mississippi. Dec. 18, 1893.) GARNISHMENT-PROPERTY SUBJECT TO PROCESS EXEMPTIONS. Code 1880, § 1244, exempting from garnishment $100 of the wages of a laborer having a family, secures that amount whenever such exemption is sought to be subjected by legal process to the demand of a creditor. Appeal from circuit court, Chickasaw county; Newnan Cayce, Judge. Action by R. W. Chandler against J. B. White. There was judgment for defendant, and plaintiff appeals. Affirmed. Buchanan & Stovall, for appellant. W. J. Stockett and W. G. Orr, for appellees. WOODS, J. The astonishing result reached in the magistrate's court was properly rectified by the judgment of the circuit court. The contention of appellant's counsel is ut terly untenable. The statute cannot be tortured into such construction as would make only $100 per annum of a laborer or mechan ic, due as wages, secure from the demands of creditors. It is just as plausible to say that the statutory exemption of wages to the laborer having a family to support can be claimed once in a lifetime as to say that it can be claimed once a year. The extent of the exemption is not left in doubt by the language of the law. The $100 wages of the laborer having a family, under section 1244, Code 1880, it is declared, "shall be exempt from every garnishment," whether sought to be enforced annually or monthly. Time does not measure the privilege. Whenever the exemption is sought to be subjected by legal |