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

Action by Black & Co. against T. F. Houston and another to recover on notes jointly executed by defendants. There was judgment by default against defendants, and they appeal. Reversed.

The record does not show that there was ever a summons issued for defendants, and there is no evidence in the record to show that there had been a summons issued and served. The entry on the appearance docket shows the style of the case, the names of the attorneys, both for plaintiffs and defendants, and the return of the sheriff, reciting that personal service was had on both defendants. Tuis was relied on by plaintiffs to show notice. An execution was issued on this judgment, when defendants filed their appeal bond and superseded the judgment.

Eskridge & McCorkle, for appellants. Marshall & Broome, for appellees.

CAMPBELL, C. J. There is nothing in the record to show that the court acquired jurisdiction of the defendants who have appealed. There is no summons or appearance. The entries on the appearance docket are no part of the record, and are out of place in the transcript on appeal. Reversed and remanded for proceedings in the circuit court, where, in pursuance of the long-settled practice in this state, and independent of the late statute, the appellants will be held to be parties defendant, by virtue of their appeal.

MARTIN v. STATE. (Supreme Court of Mississippi. Nov. 6, 1893.)

GAMING-ALLOWING MINORS TO BET.

In Code, § 1129, forbidding an adult to bet money or thing of any value with a minor, or allow a minor to bet at a gaming table exhibited by him, the word "bet" implies the wager of money or thing of value.

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

"To be officially reported."

Archie Martin, convicted under Code, § 1129, of allowing a minor to bet at a gaming table exhibited by him, appeals. Affirmed.

Southworth, Paxton & Neill, for appellant. Frank Johnston, Atty. Gen., for the State.

WOODS, J. The word "bet" is employed in the statute under which the indictment in this case was drawn in its usual and wellunderstood signification, and that is to put to hazard a sum ascertained upon a future happening of some event then uncertain. It means the wagering of money, or something of value. It is impossible to think of betting at a gaming table without associating money, or something of value, with such betting. The statute was intended to keep

minors from the gaming table. It punishes those who allow a minor to bet at any gaming table exhibited by the offender, or in which he is concerned or interested. "To bet" necessarily means to bet something of value, in the connection in which the word is used; and that is the common and reasonable signification of the word, also. Affirmed.

HANNAH v. LONG.

(Supreme Court of Mississippi. Nov. 27, 1893.) PROMISSORY NOTE-PAYMENT.

In an action on a note payable in cotton, by one who held it as collateral security for a debt due from the payee, it appeared that at the maturity of the note defendant delivered the cotton to a third person, with directions to turn it over to whoever presented the note or gave a receipt against it; and that, before the surrender of the note or delivery of the cotton to the holder, the cotton was seized on execution against the payee, and was afterwards sold thereunder. Held, that it was error to direct a verdict for defendant.

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

Action by C. B. Hannah against M. M. Long on a promissory note payable in a bale of cotton, executed to C. C. Ivey, and by him transferred to plaintiff as collateral security for a debt due him from Ivey. From a judgment entered on the verdict of a jury directed by the court in favor of defendant, plaintiff appeals. Reversed.

On the day the note fell due Long had the bale of cotton ginned and packed at a neighboring gin, and was ready to turn it over in payment of his note. The cotton remained at the gin for several days, when Long requested one Kinard, a son-in-law of Ivey. to take the cotton to his house, and to notify Ivey that the cotton was ready for him. Kinard took the cotton and notified Ivey. Long instructed Kinard to turn the cotton over to any one who would bring his note or give a receipt against it. About fifteen days after the note was due the cotton was seized by an officer under an execution on a judgment against Ivey, and sold to satisfy same. Long and Hannah were both present at the sale, but neither objected to the sale, or made any claim to the cotton.

J. W. Barron, for appellant. Hamp Turner, for appellee.

COOPER, J. Accepting as true all that the evidence proves or tends to prove in be half of the defendant, the verdict, found by the jury under a peremptory instruction, cannot be sustained. On the contrary, the court might well have instructed the jury to find for the plaintiff. Mr. Long, the defendant, distinctly states that he had never de livered the bale of cotton spoken of in the testimony either to Ivey or Hannah. He placed it in the possession of Kinard, as his agent, and directed him to deliver it to who

ever should present the note. While the cotton was in Kinard's possession it was levied on under an execution against Ivey, who was neither the owner of the cotton, nor at that time the holder of the note. Mr. Long should have protected his property from the unlawful seizure. Having submitted to it, he cannot visit the consequences upon Hannah, who is entitled to payment of the note sued on. Judgment reversed.

LOWENSTEIN et al. v. HOOKER et al. (Supreme Court of Mississippi. Oct. 16, 1893.) PRACTICE-DISMISSAL OF PETITION-Effect on

CROSS PETITION.

Where the petition of an assignee, filed under Code 1892, c. 8, against the creditors of the assignor, asking to have the trust administered by the chancery court, is dismissed because the assignment was only partial, it is not error to also dismiss a cross petition by creditors setting up new matter on which they ask relief. Appeal from chancery court, Holmes county; T. B. Graham, Chancellor.

Petition by B. S. Beall, assignee for benefit of creditors of D. W. Beall, against B. Lowenstein & Bros. and others, to have the trust under the assignment administered by the chancery court, to which B. Lowenstein & Bros. and part of the other defendants filed an answer and cross petition, making the assignor and H. S. Hooker and other preferred creditors defendants thereto. From a judgment sustaining a demurrer by such preferred creditors to and dismissing the petition and cross petition on the ground that the statute does not apply to partial assignments, B. Lowenstein & Bros. and others appeal. Affirmed.

J. E. Givin, for appellants. Hooker & Wilson, for appellees.

CAMPBELL, C. J. The assignment shows that it is not a general assignment, and the proceeding by the assignee under chapter 8 of the Code of 1892 was not authorized by it, and this proceeding was properly dismissed. Divers creditors of the assignor, instead of exhibiting an original bill, came in according to the statute by cross petition, and introduced sundry new matters on which they prayed relief. This petition was likewise dismissed, which is complained of, but the dismissal was proper, for it is a mere cross petition, and the rule is a general one that, except in rare instances, the dismissal of the original carries with it the cross bill. There is a greater reason for the application of the general rule in such a case as this than usually in chancery causes, because it is alone by virtue of statute that new parties and new and distinct matters may be introduced by cross petition; and when the original petition is put out of court as a matter not properly there everything dependent should for the same reason go too. In a

case embraced by chapter 8 of the Code there could not be a dismissal of the assignee's petition, because rightly filed. The mistake made by the petitioners in the cross petition was in not ignoring the proceeding by the assignee, and in not exhibiting an original bill, which would not have been a mere dependency of the unwarranted proceeding which the chancellor rightly dismissed as wholly unauthorized. It is true that the partial assignment was dealt with as a general one by the parties concerned, but their blunder did not bind the court. Affirmed.

GEORGE V. SOLOMON.

(Supreme Court of Mississippi. Oct. 30, 1893.) BILL OF DISCOVERY-WHEN MAINTAINABLE.

1. A bill alleged that complainant, who had rented R.'s property from her husband as agent, paid $1,000 rent to him, and after his death the same amount to R., on her denying her husband's authority to receive it; that the estate of one or the other owed him $1,000,and asked that their personal representatives be made to show which should refund such amount. Held, that such bill could not be maintained, since it did not allege that the husband had no authority to receive it, which alone would make his estate liable, and since, on the other hand, it did not allege that he had authority to receive it, the essential fact on which the liability of R.'s estate would rest.

2. The bill further alleged that complainant paid the rent to R. under a contract reciting that he agreed to propound his claim against the husband's estate for the rent paid him, and that R. agreed to substantiate the fact that her husband had no right to collect such rent. Held not to authorize a recovery against R.'s estate, even though it bound her to substantiate complainant's claim against R.'s estate, since the bill alleges no breach of such agreement.

Appeal from chancery court, Lauderdale county; W. T. Houston, Chancellor. "To be officially reported."

Bill by J. S. Solomon against W. W. George, executor of the estate of Sarah A. Ragsdale, deceased, and L. A. Ragsdale, executor of the estate of L. A. Ragsdale, deceased, alleging that complainant rented Sarah Ragsdale's property from L. A. Ragsdale, deceased, her husband, as agent, and that he paid him the rent therefor; that, after his death, complainant paid the rent to Sarah Ragsdale, who denied her husband's authority to receive it,and asking that defendants be made to show who should refund the rent erroneously paid, and that the court make a personal decree against one or the other of the defendants to refund such rent to him. There was a decree against defendant George, and he appeals. Reversed.

Walker & Hall, for appellant. Hamm, Witherspoon & Witherspoon, for appellee.

COOPER, J. The decree in this cause rests upon no sufficient foundation. Whether we look to the so-called “written contract" of the parties, by which Mrs. Ragsdale agreed to "substantiate" the claim of appellee against

the estate of L. A. Ragsdale, or to the agree ment interpreted by the averments of the bill, it is clear that no right of action of any sort, either at law or in equity, exists in favor of the appellee. Solomon leased the land of Mrs. Ragsdale from her husband, who acted, in so doing, as her agent. He paid to Mr. Ragsdale $1,000 of the accruing rent, believing, but not knowing, that Ragsdale was the agent of his wife authorized to receive such rent. After the death of Mr. Ragsdale, Mrs. Ragsdale denied that he had been her agent, and repudiated his authority to collect the rents. She also denied the validity of the lease made by him to Solomon. An adjustment of the matter was made between Solomon and Mrs. Ragsdale, and on March 8, 1888, its terms were reduced to writing, which was signed by them. After reciting the facts of the lease, the payments to Ragsdale made by Solomon, and that Mrs. Ragsdale denied his authority to act for her, the agreement continues thus: "Now, the said parties have adjusted said matters on the following basis: Solomon pays Mrs. R. one thousand dollars on account of back rents on said premises, and Solomon agrees to propound his claim against the estate of Mr. Ragsdale for the sum of money so paid to him, and Mrs. R. agrees to substantiate the fact and claim of Solomon that Mr. R. had no right to collect said rents." The bill of complaint exhibited by Solomon in this cause against the personal representatives of Mr. and Mrs. Ragsdale avers that, soon after the execution of the written agreement between himself and Mrs. Ragsdale, he probated his claim against the estate of Mr. Ragsdale, "and expected to obtain a judgment against his executor on the testimony of said Sarah A. Ragsdale that the said L. A. Ragsdale was not authorized to collect said rents, but in a few months after said money was paid to said Sarah A. Ragsdale, and after she had agreed as aforesaid to substantiate said claim, to wit, on the day of January, A. D. 1889, the said Sarah A. Ragsdale died; and the complainant has never been able to find any other person who knows whether the said Sarah A. Ragsdale had authorized and empowered said L. A. Ragsdale to collect said money or not, nor has complainant been able to prove that the said L. A. Ragsdale was authorized to collect said rents, or that he was not authorized to collect the same." The bill then avers that the complainant does not know whether the estate of L. A. Ragsdale or the estate of Mrs. S. A. Ragsdale, but that either the one or the other of said estates owes him the sum of $1,000, and prays that L. A. Ragsdale, executor of the estate of L. A. Ragsdale, deceased, and W. W. George, executor of the estate of Mrs. Sarah A. Ragsdale, may be made parties defendant, and "that said defendants may be required to show and prove to the court whether the said L. A. Ragsdale was authorized to collect the rents named in this bill or not, and to show

and prove to the court which of said defendants is bound to refund said one thousand dollars paid, as set forth, both to said L. A. Ragsdale and to Sarah A. Ragsdale; and if, on a final hearing, it shall be proved to the satisfaction of the court that L. A. Ragsdale collected said money without authority so to do, the court will make a personal decree against his executor to pay to complainant said sum of money, and interest thereon, and, if it shall not be proven that said L. A. Ragsdale was unauthorized to collect said rents, that the court will make a personal decree against said W. W. George, executor of Mrs. Ragsdale, to pay to complainant said sum of one thousand dollars and interest." The defendants joined in a demurrer to the bill, which was overruled. After this the complainant, before the time had passed in which answers might have been filed, exhibited an amended bill, which does not materially differ from the original, except in so far as it enjoins the execution of a judgment obtained against him by the defendant George, executor, until the final hearing, and prays that his demand asserted in this suit may be applied to the satisfaction of such judgment. The defendant George, executor, was summoned to answer the amended bill, but failed to file his answer by the time fixed by law. The complainant moved the court for a pro confesso on the amended bill, whereupon the defendant George asked further time in which to prepare and file his answer. The motion for pro confesso and the application for leave to answer were passed by the court to a subsequent day, when the defendant presented his answer, and asked leave to file the same. The chancellor, upon examining the answer, was of opinion that it presented no defense to complainant's bill, and for that reason, as his decree recites, and not because it was filed too late, overruled the defendant's application, granted the decree pro confesso, and upon that made a final decree against George, as executor, as prayed.

We are unable to discover any right, legal or equitable, stated in complainant's pleading, and entitling him to relief. The demurrer to the original bill should have been sustained. If no defense had been made by the defendants to the bill of complaint, a decree pro confesso thereon would not have warranted a final decree against either of the defendants, for, though a decree pro confesso may be entered against a defendant, no final decree can be given thereon unless the bill confessed states a case for relief. Garland v. Hull, 13 Smedes & M. 76. Stating complainant's case as strongly as it may be expressed for him, and as favorably as it is put by the averments of his bill, his right to relief against one or the other of the defendants rests upon the proposition that he has paid the rent of Mrs. Ragsdale's property. first, to Mr. Ragsdale, who claimed to be authorized to receive it as his wife's agent, and. secondly, after his death, to Mrs. Ragsdale.

who then, for the first time, denied that Mr. Ragsdale was her agent. In this aspect of the case, it is evident, from a mere reading of the bill, that no recovery can be had against either defendant. There is no averment in the bill that Ragsdale had no authority, as agent, to receive the money paid; and this was the essential fact, upon the existence of which the liability of his representation could only rest. On the other hand, there is no averment that Ragsdale did have authority to receive the rents; and, unless this is true, Mr. Ragsdale's estate is not liable to make restitution of the money she received, unless she bound herself for its return by the terms of the written agreement signed by herself and the complainant, which will be considered hereafter. Considering the case for the present without reference to the written agreement, it will be seen that its whole statement is that Ragsdale or Mrs. Ragsdale received money from complainant which he or she ought not to have taken, and that complainant does not know who should repay the amount; and the court is asked to set the representations of the two estates at issue, to the end that complainant may know who is his debtor. This is certainly a novel proceeding, and we know of no precedent or principle upon which it can be maintained. The bill is a pure and simple fishing bill, and complainant angles in the broadest water. If relief, under these circumstances, can be afforded in equity, we see no reason why the owner of lost or stolen property might not implead in one suit the residents of a city or county upon the averment that some one of them-which one, the complainant is not informed-has converted his property, and is liable for its value. There is nothing in the decisions of this court in Gay v. Edwards, 30 Miss. 218; Tate Co. v. De Soto Co., 51 Miss. 588; State v. Brown, 58 Miss. 835; and Board v. Alford, 65 Miss. 63, 3 South. 246,-that lends the slightest support to the present proceeding. Gay v. Edwards was rested upon the facts that the fund sought to be distributed was a trust fund; that the complainants had no remedy at law; and, finally, because the rights of the respective parties could be determined only upon the statement of an account, to which statement all the claimants were necessary parties. The other cases were such that the liability of the respective defendants could only be determined by an accounting in which all were interested. The distinction between those cases and this is palpable and radical.

No right of recovery against the representation of Mrs. Ragsdale on the agreement of March 8, 1888, which was reduced to writing and signed by her and complainant, is shown by the bill. Whether the agreement meant more than that she would testify, as a witness, in a suit to be brought by Solomon against the representative of Ragsdale, that Ragsdale had no authority to collect the rents of her property, we need not now

decide. If it be conceded that the agreement bound her to "substantiate" Solomon's claim against the estate by supplying him with sufficient evidence, either by her own testimony or otherwise, the sufficient reply is that there is no averment of the bill that there has been a breach of such agreement. In any event, Solomon should have brought suit against the estate of Mr. Ragsdale, and thus have afforded Mrs. Ragsdale in her life, or her representative since her death, the opportunity of keeping the contract she had made. This he has never done. The present proceeding, even if complainant's construction of the written agreement be correct, is not such suit: First, because the breach of contract relied on to sustain the recovery against Mrs. Ragsdale's executor occurred, if at all, after it was instituted, and by reason only of her failure to prove in this proceeding the want of authority in Ragsdale to receive the rent money and security, because, if her representative had in this suit supplied full proof of that fact, no recovery could have been had against Ragsdale's representative, for there is no averment in the bill to which such testimony would have been relevant. No evidence is admissible, except such as is relevant to the issues made by the pleading. George, Dig. p. 863, § 203. The decree is reversed, and bill dismissed.

JOHNSTON v. STANDARD OIL CO. (Supreme Court of Mississippi. Dec. 18, 1893.) CLAIMANT'S ISSUE-MEASURE OF DAMAGES.

On the trial of a claimant's issue, the measure of damages of plaintiff in execution if he has judgment is the value of the property converted at the time of the trial, with interest from that date.

Appeal from circuit court, Lowndes county; L. E. Houston, Judge.

Claimant's issue between S. B. Johnston and the Standard Oil Company to try title to a horse levied on by the company under an execution in its favor against one Brown. There was judgment for the company, and claimant appeals. Reversed.

The Standard Oil Company recovered a judgment against W. P. Brown in July, 1891, for $161.87. In October thereafter execution was issued on this judgment, and levied on a horse in a livery stable in Columbus, Miss., as the property of Brown. S. B. Johnston, appellant, made affidavit of his right and title to the horse, gave bond, and took possession of the horse. The claimant's issue was tried November 3, 1891. Johnston claimed by virtue of an unrecorded and unac knowledged bill of sale by Brown to him of the horse. The testimony showed that the horse had been owned by Brown; that it had been in his uninterrupted possession and use; and that he had continually exercised dominion over it by paying its livery bill, and holding himself out as the owner of the

horse, and the horse was assessed to Brown. There was a judgment in the justice court in favor of appellee, and an appeal was taken to the circuit court, where appellee again obtained a judgment for $200, alleged value of the horse. The verdict and judgment were, on motion, set aside, and a new trial granted. The case then came up for trial at the May, 1893, term of the circuit court of Lowndes county, when the court gave a peremptory charge to the jury to find for the plaintiff in execution, and to assess the value of the horse as at the time of the alleged conversion by the claimant, with interest thereon, which resulted in a verdict and judgment to that effect. Claimant's motion for a new trial was overruled, and he appealed.

Wm. Baldwin, for appellant. Humphries & Sykes, for appellee.

WOODS, J. All the evidence in the case shows quite satisfactorily that Brown, the execution debtor, made no sale of the horse to the appellee; and the execution of what the appellee in its evidence calls a bill of sale does not make that a sale which clearly was not. The agreement as to the horse between the claimant and the execution debtor was only an executory undertaking by Brown to sell the horse when and where and as he would, and apply the proceeds to the payment of his debt to appellee. If he never sold, there could be no application. If the horse had died before sale, the loss must certainly have been Brown's. Appellee was no way interested until the horse was sold, and then it had an agreement with Brown by which it was to have the purchase money of the horse, and credit Brown with that sum. The horse remained in Brown's possession, with the right to sell him; and to sell him, as we have said, when and where and as he wished. These facts show there was no sale,-no legal sale,-and the appellant should have prevailed in the trial below.

We are constrained, however, to reverse the judgment appealed from because of error complained of in the instructions given for appellee. It has long been held by this court that in a suit of this character the value of the property at the time of trial, with interest from that date, is the measure of the plaintiff's recovery if successful, and not the value at any prior time. Selser v. Ferriday, 13 Smedes & M. 698. The rule announced in George v. Hewlett, 70 Miss. 1, 12 South. 855, and reaffirmed in Lumber Co. v. McPherson, 70 Miss. 91, 11 South. 657, is inapplicable on the trial of a claimant's issue, for the obvious reason that in a controversy of the character involved in that issue there is no wrongful taking or withholding of the property from the owner by the claimant. The property is not that of the execution creditor, but is or is not that of his debtor, and its real status can only be de

termined by a trial of a claimant's issue. It is true that vexatious delay may occur, and the value of the property may be depreciated, but that is only an ordinary incident to many phases of litigation. We will reinstate, however, the first verdict, as the appellant is entitled to that. The verdict is for an amount greater than the judgment debt, and the judgment on this verdict is for the like excessive amount; but this is formal, and the satisfaction of the amount, principal and interest, of appellee's judgment against Brown, the judgment debtor of the oil company, will discharge the reinstated judgment. If the appellee should undertake to exact more than the amount of its demand against Brown under the judgment against him, a motion in the court from which the execution issues will readily protect the appellant. The judgment appealed from will be reversed, and the first verdict reinstated, and judgment entered here on the same.

RUCKER v. STATE.

(Supreme Court of Mississippi. Jan. 1, 1894.) WITNESS-EXAMINATION.

Leading questions cannot be asked by counsel of his own witness, introduced to impeach an opposing witness by showing that he had made other and contradictory statements to what he had testified.

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

Charles C. Rucker was convicted of manslaughter, and appeals. Reversed.

C. C. Rucker was indicted in the circuit court of Tippah county for the murder of one William Sanders, was tried, and convicted of manslaughter, and sentenced to 10 years in the penitentiary, from which he appealed. On the 4th day of November, 1892, a little before daylight, deceased and a man named Crum arrived at the house of one Kelly, on the plantation of appellant's father, before it was light enough to see well. Dock Rucker, a boy then 14 years old, a brother of appellant, was sent by his father on an errand, and passed the house of Kelly, where deceased and Crum had stopped. While the boy was passing Kelly's house, he was cursed and shot at by some one unknown to him. When the boy's father was told of the shooting, he took a negro man named Cy Rucker, and went to find the man who did the shooting. In the mean time one of these strangers had sent for Dr. Rucker, the appellant. He reached Kelly's house before his father did, but knew nothing of the shooting. When the elder Mr. Rucker arrived, appellant was talking to Crum. Mr. Rucker asked Crum who had shot at his boy, and Crum told him that it was the other man, meaning deceased. Dr. Rucker, appellant, then joined his father and Cy Rucker and one of Kelly's sons in a search for the man who did the shooting. Cy informed them that he had seen the other