of Mrs. Greene, on which the judgment of the court had been sought and obtained. Defendant reserved a bill to this ruling of the court, the effect of which was to effectually cut off all attack upon the title to the property as between John Greene and his widow and the plaintiffs. Defendant made no effort to support the tax title, further than through the evidence already alluded to. The court rendered judgment in favor of the plaintiffs, recognizing and decreeing them to be the true and lawful owners of the property described, and adjudging and decreeing null and void the sale of the said property evidenced by the act of sale from the auditor of the state of Louisana to the defendant, of date of June 19, 1891, and ordering that the inscription of the same in the conveyance office of the parish of Orleans be canceled and erased, but rejecting plaintiffs' demand for rents and revenues. Defendant has appealed.

The present action is, under its pleadings, petitory in character. That action is gov erned by well-established rules, one of which is that the plaintiff must recover on the strength of his own title, and not the weakness of that of the defendant; another, that the defendant in possession, claiming title, has the right to require that plaintiff not only show a better title than defendant does, but a title as good as any the latter can oppose to him. whether vested in the defendant or not. The outstanding title in a third person, of which he is entitled to avail himself, must be a legal, subsisting, and better title than the plaintiff's; and it has been held that it must be pleaded, in order that plaintiff may have notice thereof.

In the case at bar, defendant rests his own claim of ownership and possession upon an adjudication made to the state under the title of one G. W. Brown, the origin of which is neither alleged nor shown. Neither in his pleadings nor in his evidence has he, as to his own actual personal rights, gone beyond and behind the auditor's deed of sale to him, and the recitals of the same. He does not claim to hold under the John Greene title, but seeks to avail himself of it as the title of a third person. He has attempted in this suit to establish, as a fact to inure to his benefit, that John Greene's title is a valid, legal, subsisting title, vested in Mrs. Greene, outstanding, and held adversely to that advanced as their own by the plaintiffs, and relied upon by them. He does not claim that the Greene title is outstanding, both as to Mrs. Greene and the heirs of Bundy. He contends that Mrs. Greene holds that title, and he denies that the plaintiffs have acquired it. Defendant overlooks the fact that the questions which he, claiming as a third person, endeavors to have collaterally looked into by us in this proceeding, have been directly examined through judicial proceedings which have terminated in a decree of this court between the very parties them

selves whose clashing claims he now wishes passed upon. Mrs. Greene, in that matter, championed her own rights, as universal legatee of her husband, against the present plaintiffs, who, in the suit brought by her against them, successfully pleaded in reconvention their rights of ownership under the notarial act of sale from her husband to the ancestor of the defendants. The right of ownership (between those parties) to this property has been fixed by a judgment now res judicata, and it cannot be reopened by one who asserts, himself, no legal adverse interest in the Greene title. This view sustains the ruling of the district judge on the question of the admissibility of evidence to attack (as being simulated) the title of the Bundy heirs to the property.

The issue as to the Greene title being disposed of, defendant's rights are made to de pend, by him, upon the tax title conveyed to him by the state. We have before us unquestionable evidence that as far back as 1837 the title of this property was placed of record as being in Louis F. Bundy, and derived by him from John Greene, and unquestionable evidence that, from that time to the date when the defendant was placed in possession under the auditor's deed, the property was in the continuous possession of John Greene and his widow and universal legatee. In the litigation between the widow and the Bundy heirs, the character of that possession was declared to have been continuously a precarious one, not legally a possession of Greene and his widow, but legally a detention or custody by them of the property for Louis F. Bundy and his heirs. Defendant did not introduce in evidence the proceedings under which it is claimed that the property was adjudicated to the state, or in any way show at what time and in what manner Brown (in whose name the property was assessed for the taxes of 1881, 1882, and 1883) became connected with it, or what that connection was. He has failed to do this, notwithstanding the direct and precise charge in plaintiffs' petition that he never was the owner of the property, and never had an interest in it. Under the pleadings and under the evidence, plaintiffs' title must prevail. Lanfear v. Harper, 13 La. Ann. 548.

It is claimed that even had this tax title been an outstanding one, better than that upon which plaintiffs declare, it would not have been available to the defendant, for the reason that he already held it by purchase when Mrs. Greene brought her suit against the Bundy heirs, and, instead of then advancing rights under it adversely to the Greene title, he, on the contrary, consented to become Mrs. Greene's counsel, and as such endeavored to enforce her rights under the latter, and for that purpose had averred that John Greene and his residuary legatee, Mrs. Greene, owned the property, and had been continuously in possession of the same since 1837; and for the further reason that the allega

tion of ownership in Mrs. Greene, at the time | of the institution of her suit, was inconsistent with the contention that defendant was himself, at that time, the owner. We are not called upon to say whether the contention be well founded or not, but we think it right to say that in this case, had such an effect followed from the fact stated, it would have been the consequence, not of any wrong, personally or otherwise, on the part of the defendant, but of a simple error of legal judgment. The duty which he owed his client has always been recognized and performed by him. He has never occupied a position antagonistic to her. On the contrary, his efforts have been constantly in the direction of assisting her. If the plaintiffs, through the fact alluded to, would have gained such a vantage ground, they would have done so, not because defendant had failed in any duty to them, but through the application of a rule of law which inured to their benefit. Plaintiffs themselves say in their brief that he would have renounced, in favor of the parties to the first suit, any claims antagonistic to either of them. Defendant would have paid the penalty of the loss of his own rights by an attempt to serve his client. For the reason herein assigned, it is hereby ordered, adjudged, and decreed that the judgment appealed from be, and the same is hereby, affirmed.

MCENERY, J., absent, sick. PARLANGE, J., takes no part.

On Rehearing.

(Feb. 5, 1894.)

BREAUX, J. The defendant, in his application for a rehearing, directs attention to the fact that the plaintiffs averred in their petition that prior to the institution of the suit the defendant informed them he would not surrender the property sued for, nor cancel the sale from the auditor to him, upon payment by them to him of the sum paid by him to the auditor as the purchase price of the property. He adds: That this allegation was put at issue by his general denial, and, that no evidence was introduced by plaintiffs in support of their allegation. The price paid was $98.50; 10 per cent., $9.85; total, $108.35. That this amount should be reimbursed, and that plaintiffs should be required to pay this amount as a condition precedent to the annulling of the tax deed. In the answer of the defendant to plaintiffs' petition, he avers that he purchased the property involved in the suit from the auditor, and in support of his defense he introduced a copy of the act of sale. The purpose was, in thus introducing that act, to prove title. The issue, by the pleadings, was limited to a question of title of the defendant vel non. No plea was made with the view of recovering the taxes paid, in the event that the tax deed falled to sustain ownership in the defendant.

There was no want of tender averred, and no plea whatever looking to the return of the money paid, as made to appear by the tax deed. The court, therefore, did not pass upon an issue not made. This court has repeatedly held that rights such as those now claimed may be pleaded in reconvention, and when the purchaser of a tax title not valid has chosen to claim the taxes in reconvention, if they were taxes that at all inured to the benefit of the property involved, they were allowed. In the present condition of this suit, it is not possible to determine whether the taxes paid are taxes which the plaintiffs should reimburse. The records do not disclose that they were the only taxes paid upon the property during the time for which the illegal payment was made, or that they are taxes for the payment of which the owner is responsible. We have no authority to recall and annul judgments rendered contradictorily, on the ground that plaintiffs should have made a tender of the amount of taxes paid, for the reason we have already given, that no plea of the want of tender has been made. And no proof has been admitted to show that the taxes were taxes for which the plaintiff was responsible. To be more explicit on this point: If the taxes, though assessed in the name of a third person, not the owner, were the only taxes assessed on the property, and the state received the amount as taxes due on the property, (and no other taxes were assessed and paid,) the property would have received a benefit for which the owner should account, although the tax deed was not valid. We have not the facts before us to determine if such was the case in the matter of the property in controversy in this suit. The defendant's right for taxes paid, whatever they may be, will be protected by reserving to him his right to sue for reimbursemeur of any amount he may have paid on account of taxes against the property, inuring to the benefit of the plaintiffs. This reservation having been made, our previous decree remains, and rehearing is refused.

CARTWRIGHT v. STATE. (Supreme Court of Mississippi. Nov. 20, 1893.) MANSLAUGHTER-NEW TRIAL-IMPROPER REMARKS OF DISTRICT ATTORNEY-MISCONDUCT OF JURORS.

1. The supreme court will not order a new trial for unwarranted and improper remarks of the district attorney, unless they amounted to a most extreme and intolerable abuse of his privilege, if defendant's attorney failed to interpose an objection to such remarks.

2. Defendant is entitled to a new trial where the jury obtained and read, during the trial, newspaper reports of the evidence, colored by the feelings of the reporter, who was a partisan of the state, and whose report of the evidence was accompanied by remarks unfriendly to defendant.

3. A juror, when passing a store with the other jurors during a trial, left them, went

into the store alone, called for paper and pen, and wrote a note. Held, that such misconduct, if not explained, was ground for a new trial.

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

Jack Cartwright, alias Swanson, was convicted of manslaughter, and appeals. Reversed.

W. R. Harper and C. H. Alexander, for appellant. Frank Johnston, Atty. Gen., for the State.

WOODS, J. The errors complained of in the first and second assignments, if errors they were, need not be considered. They proved harmless, for the action of the jury in acquitting one of the defendants, and in finding the other guilty of manslaughter, demonstrates that the homicide committed 18 months before did not furnish to the mind of the jury the material for the homicide charged in this prosecution. Evidently, the jury rejected the state's theory that the killing was murder, and that the motive for its commission was to prevent arrest for the prior offense in another state, and so the defendant is left without ground for complaint on this point.

The remarks of the district attorney were unwarranted and improper, we think, but no objection was interposed nor any exception taken at the time. Only in the motion for a new trial is any mention to be found in the record of the supposed transgression of the counsel for the state. If counsel go beyond proper bounds in the heat of debate, opposing counsel should then interpose, and have an opportunity given for the correction of the wrong. If such error is suffered to pass unnoticed at the time, it must be a most extreme and intolerable abuse of the advocate's privilege that will receive correction at our hands.

The law was fairly and fully given for the defendant, and we find no error in any action of the court upon the instructions.

The eighth assignment of error is well taken. Some members of the jury, during the progress of the trial, procured copies of a daily newspaper containing the substance of the evidence of many of the witnesses who testified on the trial, as the same impressed itself upon the mind of the newspaper reporter. It filtered through the medium of a partisan of the state, and was his version of the evidence. This version, too, was accompanied by remarks of the reporter unfriendly to the accused, and well calculated to excite prejudice in the mind of a reader. The homicide was characterized as "the unprovoked murder of two officers while in the discharge of official duty." The defendants were declared to be the possessors "of very unsavory and damaging antecedents." This method of communicating to and impressing upon the jury, or any member of it, the opinions of others, is open to the same condemna

tion which would be visited upon oral expressions of opinion touching a defendant injected into the body of the jury by some designing intermeddler. We can see no difference, unless in degree. The widely-read and influential daily journal, speaking for, as well as to, the public, reflecting popular sentiment, as well as making it, must be held to be much more powerful in influencing the average man than any expression of opinion by a single, private individual. We know of no reported case in which an outside person has been shown to have talked with the jury, or a member of it, concerning the accused when on trial for a high crime, and especially to have talked unfavorably to and with the jury of the accused, in which the verdict has not been set aside. It seems to us impossible to distinguish between the mischief done by oral and written or printed communications. In every instance in which improper influences have been brought to bear upon the jury there will arise the fear that the accused has not had that fair and impartial trial to which he was entitled.

But, in addition to this most reprehensible conduct of the jurors in thus reading the newspaper reports of the evidence adduced, colored necessarily by the feelings of the reporter, it is shown that there was an unwarranted and wholly unexplained separation of the jurors. On hearing evidence in support of the motion of the prisoner for a new trial, Mr. Eyrich testified that on one occasion, during the progress of the trial, when the jury passed the door of his business house, one of the jurors came into his store alone, called for paper and pen, and wrote a note. How long this juror remained away from his fellows nowhere appears. To whom the note was written, or what were its contents, does not appear. Whether the juror talked with persons in the store or elsewhere when he set out to rejoin his fellow jurors (for we must assume that he did somewhere, at some time, rejoin them, seeing we find a verdict subsequently rendered) is left to blind conjecture. The state made no effort to show any fact by any witness which would relieve the conduct of the culpable juror of that suspicion which naturally attaches to it, and this, at least, the state was bound to do before its verdict would have been permitted to stand. So long as jurors recklessly disregard the instructions of the trial court (for we unhesitatingly assume that the court did instruct the jury as to its duty to remain together, and shun all communication from any source) just so long will this court, in seeing that every person accused of crime has a fair impartial trial, feel bound to set aside verdicts thus obtained. In all the multiplied cases in our own reports, from Hare's Case, in 4 How. (Miss.) 187, to Skate's Case, in 64 Miss. 644, 1 South. 843, there is to be found universal and unmeasured condemnation of verdicts open to grave suspicion of unfairness. We regret the necessity of re

versing the judgment, but an imperative sense of duty demands it. Reversed and re

manded.

SCHOOLFIELD et al. v. HIRSH et al. (Supreme Court of Mississippi. Nov. 20, 1893.) GARNISHMENT ASSIGNMENT OF JUDGMENT BY PRINCIPAL DEBTOR-VALIDITY-EFFect. 1. The assignment of a judgment vests the title in the assignee, so as to defeat a garnishment of the judgment debtor by a creditor of the assignor, though the garnishee is not notified of the assignment before service of the garnishment.

2. The assignment of a judgment to pay the assignee and certain other creditors of the assignor, in consideration of their acceptance of the judgment in full of their several claims, aggregating more than the judgment, vested title in the assignee, as against a garnishing creditor of the assignor, since the acceptance by the assignee in trust for himself and the other creditors named was a sufficient acceptance as to all.

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

Garnishment proceedings by Schoolfield, Hananer & Co. against Henrietta Hirsh and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

St. John Waddell and Johnston & Johnston, for appellants. Jayne & Watson, for appellees.

CAMPBELL, C. J. All the questions in this case resolve themselves into two, the disposition of which will be decisive of the case, and render unnecessary any reference to the others. These questions are:

First, is the assignment of a judgment valid and effective to vest the title to it in the assignee, so as to defeat a garnishment of the judgment debtor by a creditor of the assignor, without notice to the garnishee of the assignment before service of the garnishment? We have no hesitation to answer this in the affirmative, both on principle and authority. Notice may be important as to the garnishee or the claims of conflicting assignees; but a valid assignment unquestionably passes the title of the assignor, without notice to the debtor, and, after assigning, the assignor has no interest to be reached by his creditor in any proceeding. As between rival claimants of what is in the hands of a garnishee, notice to the garnishee is not matter for inquiry. Their rights do not depend on notice. Except as affected by the registry laws, a creditor can subject to legal process only the interest of his debtor, and his debtor has no interest in a chose in action he assigned before seizure by legal process. Oldham v. Ledbetter, 1 How. (Miss.) 43; Byars v. Griffin. 31 Miss. 603; Moffatt v. Loughridge, 51 Miss. 211. Many cases might be cited in support of this view, but it is needless. A judgment is assignable, and the effect of assigning a judgment, so far as divesting the assignor of all

interest, is the same as if the subject were something else.

The other question is, was the judgment in favor of Mrs. Hirsh assigned in such effectual way as to defeat the right of the garnishing creditor? She had, before the garnishment of her judgment debtor by her creditor, assigned the judgment, by written transfer, to Theo. Pohl, one of her creditors, to pay him and others named in the assignment their several claims, which were specified, in consideration of their acceptance of the judgment shared among them in full of their several demands, which aggregated more than the judgment. Pohl received and accepted the transfer, but the other creditors, beneficiaries of it, are not shown to have signified their assent to it until some days afterwards, and after the service of the garnishment. The argument is that the assent of the creditors provided for by the assignment was necessary to its validity, so as to defeat the intervening garnishment, on the established principle that two parties are necessary to a contract, and there must be aggregatio mentium, and the assent of the grantee, to make a grant good; and Hart v. Forbes, 60 Miss. 745, and other cases in ac cord with it, are relied on as decisive of this case on this principle. In these cases the transfer was to the creditor, who had no knowledge of it, and was no party to it, and therefore did not assent until after the rights of others attached to the subject of the transfer, and the principle here invoked was applicable and decisive. But in this case the assignment was to one creditor for himself and others; and he accepted it, and gave a valuable consideration for it, and became a trustee for the others, who were immediately entitled to enforce the trust in their favor. The assignment certainly vested the legal title of the judgment in Pohl, and that put it beyond the reach of garnishment at law; and, in a contest in a court of chancery between conflicting equities, the beneficiaries of the assignment, being prior in time, would be prior in right to the gar nishing creditor. The cases which hold that assent of the assignee is necessary, before seizure under legal process, to defeat the creditors, proceed on the proposition that until such assent the right to revoke the assignment is in the assignor. But Mrs. Hirsh did not have the right to revoke her assignment to Pohl after his acceptance of it for himself and others. Her right was gone. It was in Pohl, and beyond her control, and therefore beyond the reach of her creditor. It is true, if all the other beneficiaries besides Pohl had refused assent to the assignment, he would have been either owner of the judgment himself, or trustee for Mrs. Hirsh of the excess realized from the judgment beyond his claim, and he might, in such case, be garnished as her debtor; but no such case is presented. The other beneficiaries did not refuse assent. They had the

right to signify assent, within a reasonable! time, and the trust created for them was not defeated or affected by the garnishment before they had given their assent. The books make a wide distinction between a transfer directly to a creditor, and one to a trustee for creditors. In the latter case, the assent of the trustee, by acceptance of the trust, renders the assignment irrevocable. That fulfils the requirement of two parties and an agreement of minds, and the assent of the beneficiaries is not necessary to the validity of the assignment. It creates a trust, and they may assent and claim its enforcement, after attachment, execution, or garnishment. This is the true doctrine, as we think, and it has abundant support. Burrill, Assignm. § 284 et seq.; Bump, Fraud. Conv. p. 324 et seq.; Oakley v. Hibbard, 44 Amer. Dec. 426, 427; Ingram v. Kirkpatrick, 6 Ired. Eq. 463; Skipwith v. Cunningham, 8 Leigh, 271; Marbury v. Brooks, 11 Wheat. 78. It seems also to be affirmed by most respectable courts in England and America that when an assignment is made, not to a stranger,-a mere trustee,-but to a creditor in trust for others, this makes the required assent of all to the assignment, or that no other assent than that of the creditor to whom the assignment is made is necessary. Hastings v. Baldwin, 17 Mass. 551; Siggers v. Evans, 32 Eng. Law & Eq. 139. We think that the assignment of Mrs. Hirsh to Pohl was effectual to vest in him the right to collect the judgment and carry out the assignment, and that the garnishing creditor has no right to the proceeds of the judgment, or any part of them. The suggestion that the assignment was made for the very purpose of defeating the garnishing creditor, and therefore that it is void, is unavailing. It matters not if it was. If Mrs. Hirsh chose to prefer her creditors named as beneficiaries in the assignment, and made the assignment for the purpose of preventing the appropriation of the judgment by another creditor, she did nothing but what the law allows. That is just as allowable a mode of preferring creditors as any other. Affirmed.

MOSELY V. JAMISON. (Supreme Court of Mississippi. Jan. 8, 1894.) DISMISSAL OF ACTION-POWER OF PARTIES.

Though the plaintiff agrees to give his attorney, for his services, a part of the judg ment he recovers, he may compromise and dismiss the suit without the attorney's consent. Appeal from circuit court, Chickasaw county; Newnan Cayce, Judge.

Action by E. A. Mosely against A. J. Jamison to recover a sum agreed to be paid by defendant in consideration of plaintiff's dismissal of an action against him. There was judgment for defendant, and plaintiff appeals. Reversed.

v.14so.no.12-34

E. A. Mosely brought a suit for damages against A. J. Jamison and employed W. T. Houston as his attorney, agreeing to give a part of what he recovered for his services. After this suit had been tried and appealed several times, Mosely agreed with Jamison to dismiss the suit if Jamison would pay all costs, and pay him $150. Jamison paid the costs, and an order of dismissal was entered on the minutes of the court. Mosely notified his attorney, who appeared, and asked the court to set aside the order dismissing the suit, and reinstate the case, on the ground that he was interested in the result of the case, and that Mosely had no right to dismiss without his consent. This motion was dismissed by the court. Houston has not appealed from this order, but still threatens to do so, and so informs Jamison. Jamison refused to pay the $150 promised in settlement of Mosely's claim on the ground that the case has not been finally dismissed, and cannot be until the two years provided by statute for Houston to appeal. Mosely thereupon brought this action to recover the $150. To this action Jamison replied, as above set out, that the former suit was still pending. There was a verdict and judgment in the court below for the defendant, from which Mosely appealed. W. R. Harper and E. A. Mosely, for appellant. A. J. Jamison, in pro. per.

CAMPBELL, C. J. The appellant is entitled to the judgment he seeks in this case. He and Jamison had a perfect right to compromise and settle their controversy as they did. There is no danger whatever, on the facts appearing in this record, that Jamison will be held further liable in the action of Mosely against him in Clay county at the suit of Mosely or his attorney. The right of parties to settle their suits in good faith, and without collusion, for the express purpose of wronging another, is undisputed and indisputable, even in England, where costs to attorneys are regulated by law, and taxable; and, a fortiori, must that right be recognized here, where there are no taxable costs in favor of attorneys. Weeks, Attys. at Law, § 382, and cases cited in note 3; 1 Am. & Eng. Enc. Law, p. 970 et seq., and notes. The claim of an assignment of an interest in Mosely's claim for damages against Jamison to the attorney, and his right to prosecute the action in Clay county because of this, need not disturb Jamison's fears. He can never be hurt by it. Reversed, and remanded for a new trial in accordance with this opinion.

HOUSTON et al. v. BLACK et al. (Supreme Court of Mississippi. Jan. 1, 1894.) APPEAL-DEFECTIVE RECORD.

A judgment against defendants must be reversed for want of jurisdiction, where the record does not show service of summons or appearance, entries in the appearance docket being insufficient to show such facts.