process to the demand of a creditor, the exemptionist may invoke the protection of the law. The fears of the counsel for appellant are premature. When the golden age returns, and laborers having families earn from $1,200 to $12,000 per annum, if debt and credit then survive, doubtless a legislature, if one is left, will reduce the exemption of the wealthy laboring man. Affirmed.

HOLMES v. PRESTON et al. (Supreme Court of Mississippi. Dec. 18, 1893.)

ACTION ON NOTE-PLEADING ON PROOF.

When plaintiff sues defendant as indorser, but proves him liable as a guarantor, without objection, the judgment will not be reversed, though plaintiff did not sustain the burden on him under the pleadings to show notice and protest.

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

Action by Preston & Stauffer against G. W. Holmes on a promissory note. Judgment for plaintiffs. Defendant appeals. Affirmed. Southworth & Stevens and S. R. Coleman, for appellant. Rush & Gardner, for appellees.

COOPER, J. If the plaintiffs had declared against appellant, as they might have done under the facts proved, as primarily bound with Garrote, or as a guarantor, their right of recovery would have been clear, without regard to the fact that he did not have notice of the protest of the bill of exchange. Thrasher v. Ely, 2 Smedes & M. 139; Baker v. Kelly, 41 Miss. 696; Tatum v. Bonner, 27 Miss. 760. But, having sued him as an indorser, it would have devolved upon them to prove notice and protest, if the defendant had objected to the evidence introduced to charge him in another character. This the defendant failed to do, and the evidence of the plaintiffs tending to prove that notice was given, and that defendant was bound without regard to notice, the defendant introduced some evidence tending to prove the contrary, and then demurred to the evidence. The record discloses a novel conception of the office of a demurrer to evidence. Some of the evidence for the plaintiffs was by deposition, and some of it oral testimony taken down as it fell from the lips of the witnesses, and all of the evidence for the defendant was oral testimony. The evidence both for plaintiffs and defendant was set out in full, and the demurrer of the defendant was to the whole,-both that of the plaintiffs and his own. The plaintiffs, "without admitting the correctness of the statements of the defendant," joined issue on the demurrer, on the hearing of which the court gave judgment for the plaintiffs. Without regard to the irregularities in the proceedings, we think a right result has been reach

TAX SALES-REDEMPTION-CONST. 1890. Though Const. 1890, § 79, preserves the right of redemption from tax sales of realty for not less than two years, section 274, providing that the laws in force, and repugnant to the constitution, should remain till April 1, 1892, unless sooner repealed, continued, till that date, the existing revenue law, which gave one year's right of redemption; and in the case of a sale made prior to April 1, 1892, the parties' rights were governed by that law, under Code 1892, § 4, providing that its repealing clauses do not affect any act already done, or cause of action or right accruing or accrued.

Appeal from chancery court, Clay county; Baxter McFarland, Chancellor.

Bill in equity by O. C. Brothers, Jr., against John M. Judah and others. Decree for complainant. Defendants appeal. Affirmed. Houston & Reynolds, for appellants. Critz & Beckett, for appellee.

CAMPBELL, C. J. Whatever would be the effect of section 79 of the constitution of 1890, as to the right to redeem real estate thereafter sold for nonpayment of taxes, if it was unaffected by any other provision of that instrument, it is certain that the effect of section 274 was to continue in force, unimpaired by the constitution, the then existing revenue law, which gave the right of redemption from such sales for one year, and, as that law was not repealed sooner by the legislature, it remained in force until the 1st day of April, 1892; and the sale in dispute was made on the first Monday of March, 1892, in accordance with the then existing law, which allowed one year for redemption, and that governs the rights of parties. This results from express constitutional enactment, from general rules of law, and from section 4 of the Code of 1892, which expressly preserves "any act done, or any cause of action or any right accruing or accrued or established," etc., from being affected by a repeal, by the Code, or any statutory provision. Undoubtedly, the statute in force November 30, 1890, giving one year for redemption of land sold for nonpayment of taxes, was repugnant to the provision in section 79 as to two years for redemption. ing thus repugnant, the statute was continued in force ("shall continue and remain in force") until April 1, 1892, unless sooner repealed by the legislature. It was not sooner repealed. It was therefore continuing and remaining in force, with constitutional sanction, when the sale was made, and must govern the rights of all concerned. other view is incomprehensible by us. Sec tion 79 is to be read with section 274 as a

Be

Any

A cotton buyer shipped cotton to New York, receiving a draft on the consignees in payment, and delivered the draft to defendant bank, which obligated itself to pay his checks in favor of the vendor. Complainant bank acquired the buyer's check in favor of the vendor, and, on presentation to defendant, accepted in lieu of cash a bill of exchange on defendant's New York correspondent, and thereafter defendant failed. Held not to impress defendant's assets with a trust to the amount of the bill of exchange, nor to charge defendant's correspondent as trustee for the amount thereof.

Appeal from chancery court, Washington county; W. R. Trigg, Chancellor.

Action by the Citizens' Bank against the Bank of Greenville and others. There was a decree for defendants, and complainant appeals. Affirmed.

Nugent & McWillie, for appellant. Yerger & Percy and Phelps & Larkin, for appellees.

WOODS, J. The bill and amended bill filed by the appellant in the chancery court of Washington county have a threefold aspect: (1) They seek to impress a trust upon the assets of the Bank of Greenville to the amount of $10,000, on the case thus made by it, praying, to that end, to be subrogated to the supposed rights of the two cotton buyers, Hall and Pullen; (2) they seek to charge the Hanover National Bank, of New York, as trustee for the amount of the two bills of exchange drawn by the Bank of Greenville in favor of the appellant; and (3) they pray a personal decree against the defendant Pollock, late president of the Bank of Greenville. The material averments of the pleadings on which the alleged right to relief is based are substantially these, viz.: C. E. F. Hall, a local cotton buyer in Greenville, shipped to John Paton & Co., New York, 182 bales of cotton, for the price of $6,862.71; and he drew his draft on the consignees for that amount, attaching the bill of lading given by the carrier for the cotton to the draft. This draft and bill of lading Hall then delivered to the Bank of Greenville, said bank obligating itself to pay Hall's checks drawn on itself in favor of the parties from whom the cotton was purchased. In part payment of this cotton, Hall drew his check on the Bank of Greenville for $5,796.84, and this check the appellant acquired in due course of its banking business. presentation of this check drawn by Hall in favor of the vendor of the cotton (whose identity is not disclosed) to the Bank of Greenville, said bank did not have the ready

On

money with which to meet the check, and, instead of paying the check in money, gave one of the bills of exchange of $5,000 now sought to be impressed with a trust character, and gave its due bill for $320, and paid the balance, of $476.84, in cash, and the appellant surrendered up to the Bank of Greenville Hall's check for the $5,796.84. This is the statement of fact touching the first bill of exchange of $5,000. The other bill of exchange, of equal amount, was acquired by appellant in the following manner: On the day after the transaction just detailed, appellant acquired another check, for $600, drawn by Hall on the Bank of Greenville in payment of cotton purchased by him; and, to secure the said bank, Hall drew on the consignee for that amount, attached the bill of lading to the draft, and delivered the same to the Bank of Greenville, the said bank obligating itself to honor Hall's checks given to the vendor of the cotton. In exactly the same way, the appellant, in the due course of its banking business, acquired possession of a check of R. F. Pullen for $2,000, drawn on the Bank of Greenville, to pay for cotton purchased by Pullen; and Pullen secured said bank by delivering to it his draft on the consignee of the cotton for the amount of the purchase price, attaching thereto the bill of lading. On the same day, appellant loaned the Bank of Greenville $2,000 in money. At the close of the day's business, and when the two banks made their usual settlement of the day's transactions, the appellant presented for payment to the Bank of Greenville the check of Hall for $600, the check of Pullen for $2,000, the duebill of the cashier of the Bank of Greenville of the day preceding for $320, the duebill of the cashier of the Bank of Greenville for the $2,000 loaned by appellant the same day, together with other demands amounting to $80, all aggregating the sum of $5,000; but again, instead of demanding and requiring payment in money, the appellant received the second bill of exchange for $5,000, drawn by the Bank of Greenville on the Hanover National Bank of New York.

This, in brief, is appellant's case; and it is lacking, in every aspect, of every element of trust. The sellers of the cotton to Hall and Pullen have been fully paid, and have no rights of any character. Hall and Pullen have been protected according to the obligation of the Bank of Greenville. Their checks on that bank have been paid and surrendered, and taken up by the bank on which they were drawn. These checks the appellant acquired in the course of its daily business as a bank, and on presentation for payment they were surrendered, and the bills of exchange taken instead of the cash. The appellant was entitled to demand and recover the face of the Hall and Pullen checks in money before parting with them. It did not elect to pursue its right to payment in currency, but consented to receive the bills

of exchange drawn by its debtor on its New York correspondent instead. It occupies no better position than the other confiding creditors of the insolvent debtor bank. As to the $2,000 loaned by the appellant to the Bank of Greenville, and the other small sums arising out of the dealings between the banks, as already hereinbefore set out, it cannot be seriously insisted that appellant has the semblance of right to impress a trust on anything or anybody, natural or artificial. The doctrine of subrogation has no room for consideration in this case. We have already seen that the sellers of the cotton, as well as the buyers, Hall and Pullen, are without complaint. The appellant was not required, in any kind of manner, to pay any debt for Hall, Pullen, or any one else. It had its recourse on Hall and Pullen so long as it retained their checks, but these it voluntarily parted with, taking the bills of exchange in extinguishment thereof. The decree of the court below is in accordance with these views, and is affirmed.

person referred to in this section of the Code is not one interested as owner or lessee of such lands. But this bill was properly filed, and was perfectly maintainable, under section 499 of the Code. By this section, the owner in possession, if there is no adverse occupancy, may file a bill for confirmation of his title. When the board of supervisors filed its answer to complainant's bill, disclaiming any title to the lands adverse to complainant's leasehold estate, and admitting her title, as asserted by her in her bill, the board should have been dismissed on this answer; but complainant should have had confirmation of her title, as prayed by her, but at her cost, of course. The county, disclaiming any title adverse to hers, and otherwise admitting all the allegations of the bill, could not be taxed with the costs, for the county was not her unsuccessful opponent in the litigation. The decree was erroneous in not confirming the complainant's title, and taxing her with all costs, and it will be reversed, and the proper decree will be entered here. Reversed.

OSBURN v. BOARD OF SUP'RS OF HINDS COUNTY.

(Supreme Court of Mississippi. Nov. 6, 1893.) SUITS TO ESTABLISH TITLE.

1. Code 1892, § 4147, requiring the board of supervisors to prosecute suits to establish in itself as representative of the county, the title of the sixteenth section lands, and, in case the board does not do so, permitting any person interested to do so, does not authorize a suit by a person claiming such land as owner.

2. Under Code 1892, § 499, authorizing the owner in possession of land to file a bill to have his title confirmed, when a defendant disclaims any title complainant is entitled to confirmation of his title, at his own cost.

Appeal from chancery court, Hinds county; H. C. Conn, Chancellor.

Suit by E. J. Osburn against the board of supervisors of Hinds county to confirm title to land. From the decree, complainant appeals. Reversed.

E. E. Baldwin, for appellant. Jayne & Ward, for appellee.

WOODS, J. Section 4147, Code 1892, did not authorize the institution of this proceed-| ing. By this section of the Code, it is made the duty of the board of supervisors to institute and prosecute to effect, in the proper chancery court, all necessary suits to establish and confirm in itself, as representative of the county, the title of the sixteenth section lands, and to fix the date of the expiration of any lease of the same; and, in the event of the board of supervisors failing or refusing to discharge this duty, then the privilege is conferred upon any person interested-interested as a citizen in the civil subdivision, in the assertion of the rights of the public in such lands and leases-to do what the board of supervisors should have done. The interested

ALABAMA & V. RY. CO. v. GOFORTH. (Supreme Court of Mississippi. Nov. 20, 1893.) CARRIERS OF Goods-Loss-EVIDENCE.

Where the property asserted to have been lost by the carrier is accounted for, and the apparent discrepancy explained by a slight mistake in numbering, a verdict against the carrier should be set aside.

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

Action by J. N. Goforth against the Alabama & Vicksburg Railway Company for damages for loss of cotton shipped. Judgment for plaintiff. Defendant appeals. Reversed.

Wm. L. Nugent, for appellant. Wm. Buchanan, for appellee.

WOODS, J. The verdict of the jury in the court below is not supported by the evidence. It is clearly contrary to the evidence, and it should have been promptly set aside on appellant's motion in the trial court. The testimony, taken together, can generate but one belief, viz. that the three bales of cotton for whose value recovery is sought by appellee were the three bales Nos. 25, 26, and 27, respectively, and accounted for in the deposition of the appellee's witness Phelps. It is perfectly clear, on the whole record, that these numbers were erroneously duplicated, and that they should have been, in consecutive order, 45, 46, 47. Every bale of appellee's cotton shown by the record before us to have been embraced in the business of 189091 is clearly accounted for, and to permit him to recover from the railway company the value of three bales never lost would be to legalize naked spoliation, as we now see the matter. Reversed.

TYSON v. GASTON. (Supreme Court of Mississippi. Dec. 4, 1893.) PROMISSORY NOTES-INDORSEMENT AND Delivery -TITLE.

In an action for possession of a note indorsed in blank by P., the payee, deceased, plaintiff produced a letter from P. to her, listing said note among loans made for her, and swore that he delivered the note to her with its trust deed, and she returned it to him for safe-keeping. She did not know the maker, nor whether P. made him the loan as her agent. The trust deed ran to P. as guardian of the W. minors, and the note, as well as that which it renewed, was charged in P.'s guardian's accounts. maker swore that it was made for the W. estate. When dying, P. directed that it be treated as part of the W. trust, which was to be paid off before plaintiff. The note was then in pledge for P.'s personal debt, 'which his widow paid, and delivered the note to P.'s successor, as guardian. Held, that plaintiff had no title as against such guardian.

The

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

Action by Jennie C. Gaston against John A. Tyson for possession of a promissory note. Judgment for plaintiff. Defendant appeals. Reversed.

Rives & Rives & Stokes, for appellant. O'Neill & Williams, for appellee.

WOODS, J. The private and personal letter and statement of June, 1888, from Robert C. Patty, now deceased, to Mrs. Gaston, the appellee, shows, in the list of loans made by the former for the latter, this item, viz.:

Date.

Maker.

Total.

When Am't InterDue. Loan. est. Dec. 7. J. B. Cunning- Dec. 7, '88 $634.00 $63.40 $697.40 ham.

This is the sole evidence tending to show that the note sued for was given for money loaned by Patty, as agent for appellee, to Cunningham, if we will lay out of view for the moment what is said by Cunningham on this same subject. Opposed to this private letter and statement of Patty, made for appellee's eye alone, the record shows that when he deliberately made up his accounts, and presented them to the chancery clerk for allowance, an act made for the inspection of the court, his wards, and the public, he treated this note, now sued for, as the property of his wards, the Williams children. As guardian of Gilmore Williams, in his official account on file, he charges himself with one year's interest on this very note, as well as charges himself the amount, principal and interest, of the note of A. C. and M. J. Tate, in substitution of which, unmistakably, the note in suit was given, and asks credit for $634 loaned J. B. Cunningham, December, 1887. Still in opposition to the private statement made to appellee by Patty, we find that the trust deed given by Cunningham to secure payment of the note in controversy was recorded in the chancery clerk's office by Patty himself, (who was the then clerk of that

Still further in opposition to the private statement made to appellee, we find the note and trust deed of Cunningham in the hands of Mrs. Jarnagin, of Macon, after Mr. Patty's death, where they had been deposited as collateral security for a loan made to him individually. If the case is to be determined by the evidence of Robert C. Patty alone. It appears to us that the great preponderance is against the claim of title made by appellee. But, fortunately, we are not left to the discordant statements of Patty. Cunningham was himself examined, and his testimony leaves no room for doubt. Cunningham swears that he was to take up Mrs. Tate's paper, which Patty held as guardian of the Williams heirs, and that he (Cunningham) got Patty to see if he could not get the necessary money for him, (Cunningham.) That, some time afterwards, Patty told him he had made arrangements with Mrs. Gaston about some money, and that he would let him (Cunningham) have it. "Mr. Patty did not let witness have the money. Witness did not want any, if he could take up the paper. This note was given in lieu of these notes, to cancel Mrs. Tate's papers. * No money whatever passed to witness from Mr. Patty at the time witness executed this note. The only consideration of this note was the release of that much of Mrs. Tate's land." And the subsequent official acts and declarations of Patty, as guardian of the Williams children, were in perfect consonance with the evidence of Cunningham. But, moreover, in distinct opposition to the private statement made appellee by Patty, when he lay at the gates of death, and made the final disposition of the worldly cares and responsibilities that pressed upon him, he made distinct provision, as his chosen friend and trustee testifies, that this note was to be treated as embracing a trust fund belonging to the Williams children, and that Mrs. Gaston's debt against him was to be paid by his trustee only after the trust debts had been paid off. This very note was one of the trust notes confided to the trustee, and was by that trustee understood, from what he learn ed from Patty, to belong to the Williams children. Thus, in every official way, and by acts most solemn, Mr. Patty has left his testimony as to the real ownership of the subject of the suit. Independently of all this, however, the question here involved was one of title. In whom was the title to the note sued for? It is enough to say that if the indorsement in blank of the note by Patty, and its delivery to Mrs. Gaston, invested her with the title, she lost it when she returned the note to Patty, and thereby enabled him to transfer the same, still indorsed in blank, to Mrs. Jarnagin, whereby she became in

vested with precisely the title which Mrs. Gaston now claims to have had. Clearly, Mrs. Jarnagin's title was as good as that under which the appellee claims. When Mrs. Patty paid off Mrs. Jarnagin's demand against Robert C. Patty, and had this Cunningham note delivered to her, she was invested with title; and when she delivered the note thus acquired by her, for a valuable and full consideration, to the successor in the guardianship of the Williams heirs, the note was lost to appellee forever. It is to be remembered, too, that Mrs. Gaston parted with nothing in securing the note temporarily. She herself admits she knew nothing of Cunningham, and does not know that her agent ever made him any loan. Cunningham shows that he never received one dollar from her or her agent. We repeat, there was no consideration parted with by her in the matter. Besides, the indorsement on the recorded trust deed sent to her with the note by Patty bore to her notice that the deed was in trust to secure a debt due the Williams children, and that her agent was their guardian. The paper itself gave notice which, if followed up, would have disclosed the true ownership of the paper. The peremptory instruction prayed by the appellant should have been given. Reversed and remanded.

ILLINOIS CENT. R. CO. v. STATE. (Supreme Court of Mississippi. Nov. 13, 1893.) HIGHWAYS-STREETS- OBSTRUCTION BY RAILROAD COMPANY.

Under Code, § 3551, subjecting a railroad company to fine for obstructing travel on a "highway" for more than five minutes, or on a "street" longer than shall be prescribed by ordinance of the city, town, or village. it cannot be fined for obstruction of a street in a town having no ordinance on the subject, the term "highway" relating only to roads in the country.

Appeal from circuit court, Panola county; Eugene Johnson, Judge.

Action by the state of Mississippi against the Illinois Central Railroad Company to recover a fine for obstructing a street. Judgment for plaintiff. Defendant appeals. Reversed.

Mayes & Harris, for appellant. Johnston, Atty. Gen., for the State.

Frank

COOPER, J. Under the agreed facts the defendant should have been discharged. By the Code, § 3551, a railroad company is subject to a fine of $50, (1) for obstructing travel upon a "highway" for a longer period than five minutes, and (2) for obstructing a "street" for a longer period than shall be prescribed by ordinance of the city, town, or village. The word "highway," as used in this section, relates alone to highways in the country. Mobile & O. R. Co. v. State, 51 Miss. 137; Railway Co. v. French, 69 Miss. 121, 12 South. 338.

It was admitted by the state that the town of Batesville, for the obstruction of a street of which town the prosecution was made, had no ordinance governing the subject. The appellant, therefore, was not liable under the second clause of the section. Judgment reversed, and defendant discharged.

MARKS v. STATE.

(Supreme Court of Mississippi. Nov. 6, 1893.) COUNTIES-BOARD OF SUPERVISORS-DISCOUNTING

WARRANTS.

The mere intention of a member or clerk of a county board to let another have a warrant discounted by him, without proof that such other's money was used, or that defendant by his purchase did not become the owner, will not absolve him from criminal liability, under Code 1892, § 1239, for buying or becoming its owner without paying its full face value.

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

L. Marks was convicted under Code 1892, § 1239, of discounting county warrants, while an officer of the board of supervisors, and appeals.

F. A. Montgomery, Jr., for appellant. Frank Johnston, Atty. Gen., for the State.

CAMPBELL, C. J. If the appellant had shown that, by his purchase of the county warrants, he did not become the owner of or interested in them, or either of them, in any way, a very different question would be presented; but that does not appear. There is nothing to suggest that he did not use his own money, and, by his purchase, become the owner of the warrants, although he may have intended to let Mr. McGinness or the railway company have them. There is nothing in evidence to relieve him from the provisions of the statute under which he was indicted, and which he is shown to have vio lated. Code 1892, § 1239. Affirmed.

PARKER v. PARKER. (Supreme Court of Mississippi. Nov. 6, 1893.) DIVORCE ALLOWANCE FOR COUNSEL FEES. 1. In a divorce suit, an allowance for fees of counsel for the wife should be directed to be paid to her, not to her counsel.

2. An allowance to a wife for counsel fees for defense of a divorce suit should only be such amount as will secure competent counsel. Appeal from chancery court, Lauderdale county; W. F. Houston, Chancellor.

Action by F. M. Parker against Callie Parker for divorce. From a decree allowing temporary alimony and counsel fees, plaintiff appeals. Reversed in part.

Cochran & Bozeman, for appellant. G. Q. Hall and J. R. McIntosh, for appellee.

CAMPBELL, C. J. We find no fault with the allowance by the court for the main