his own, and neither any other individual nor the public have any right to interfere with such use of it as any man may make of his own. Though he has laid out a town upon the land and on paper, he is not bound to sell the lots, or to make or authorize the making of a town in fact. If he never disposes of a lot or lots, as part of the town, no one has any interest in the town as such, or any right growing out of his acts in relation to it. But in selling to others the lots laid off as parts of the town, he creates in them an interest in the town and its plan, which places both beyond his future control, (to their injury,) unless by the consent of the vendees, or by reacquiring the lots which he had sold to them before any other actual interest in the town had grown up. And as we suppose that in the case of a town thus established or made by the private acts of the proprietor, he might by a repurchase of all the lots before any actual use of the streets and other open places by the public reinvest himself with the same rights and dominion which he had before any sale, it would seem to follow that the public at large does not acquire immediately from the proprietor, even by his act in selling and conveying the lots, any absolute or indefeasible right or interest in the existence or plan of the town, or in any of the advantages which it promises. But this right, vesting at first in the purchasers of lots, and as appurtenant thereto, and subjected to be defeated by their reconveyance of the lots to the proprietor before the land is appropriated to any actual uses of a town, becomes consummated and indefeasible by such appropriation, and, being thus perfect in the lot-owners, results necessarily to all who by residence, business, or in any other manner may have an interest in the town, or in the use of all or any of its various parts and divisions for the purposes to which, by its plan, they are to be or may be appropriated."

The case of Holmes v. Jersey City, 12 N. J. Eq. 299, relied on by counsel for appellee, goes only to the extent that a private owner may not by his own act of dedication impose on the public authorities the duty of repairing the way dedicated; and perhaps, where the width of highways is fixed by law, that there may not be an acceptance of a way of greater width as such. But it is well settled in that state that a dedication expressly made cannot be revoked, even though not accepted by formal adoption.

In Land Co. v. Mayor, etc., 36 N. J. Law, 540, the court said: "It was argued that the dedication had not been consummated when the suit was brought, by reason of the absence of an acceptance or user by the public of that part of the street which is in controversy. That question has been set at rest in the courts of this state. Acceptance by a formal adoption by the public authorities, or by public user, is necessary to impose on the public the duty to amend or repair, but is not essential to the consummation of the dedication, so as to cut off the owner from the power of retraction, or subject the dedicated lands to the public use, whenever, in the estimation of the local authorities, the wants or convenience of the public require it for that purpose." To the same effect are: Dummer v. Jersey City, 20 N. J. Law, 86; Mayor, etc., v. Canal Co., 12 N. J. Eq. 553; Irwin v. Dixion, 9 How. 10; Trustees v. Cowen, 4 Paige, 510; Hannibal v. Draper, 15 Mo. 639; In re Seventeenth St., 1 Wend. 266; In re Lewis St., 2 Wend. 472; Wyman v. Mayor, etc., 11 Wend. 486.

The decree is reversed, the injunction dissolved, and the bill dismissed. The cause will be remanded to the court below.

STRAUSS v. MCALLISTER et al.

(Supreme Court of Mississippi. March 11, 1889.)

TAX DEEDS-DESCRIPTION.

A description in a tax deed from the state: "House & Lot, W. side Union St., No. 40, between State & Washington, City of Natchez, assessed to Est. C. Lacroze, -is not void for patent ambiguity.

Appeal from chancery court, Adams county: W. R. TRIGG, Chancellor. Bill by E. M. Strauss against Emily McAllister and others, to confirm his tax title acquired from the state. The deed from the state conveyed the property in controversy by the following description: "House & Lot, W. side Union St., No. 40, between State & Washington, City of Natchez, assessed to Est. C. Lacroze." The defendants demurred to the bill on the ground that the description was "void because of patent ambiguity." The chancellor decreed that the description in the tax deed was insufficient to confirm the tax title. Strauss appeals.

Miller, Smith & Hirsh, for appellant.

COOPER, J. The description of the land was not void. Dowling v. Reber, 3 South. Rep. 654. The decree sustaining the demurrer is reversed, the demurrer overruled, and cause remanded.

CONERLY . STATE.

(Supreme Court of Mississippi. March 4, 1889.)

DISTURBANCE OF PUBLIC WORSHIP-INDICTMENT.

Under Rev. Code Miss. 1880, § 2767, providing a punishment for any person who "shall willfully disturb any congregation of persons lawfully assembled for religious worship," an indictment merely following the words of the statute, and not stating how the disturbance was effected, is insufficient.

Appeal from circuit court, Pike county; J. B. CHRISMAN, Judge.

Rev. Code Miss. 1880, § 2767, provides that "if any person shall willfully disturb any congregation of persons lawfully assembled for religious worship, he * * * shall be fined not more than $500, or imprisoned not more than six months, or both, at the discretion of the court. Appellant, Pass Conerly, was indicted in the following words: “* * * on the 9th day of January, 1888, in the county aforesaid, with force and arms, unlawfully and willfully did disturb a congregation of persons lawfully assembled for religious worship at the camp grounds commonly known as the China Grove Camp Meeting Grounds,' against the peace and dignity of the state of Mississippi." Conerly moved to quash the indictment, "because said indictment is vague and uncertain in this: that it does not state how said defendant disturbed said congregation of persons lawfully assembled for worship, but only contained a general allegation that said congregation of persons was disturbed by defendant." The court overruled the motion to quash, and, a trial being had, Conerly was convicted, and judgment entered against him, from which he appealed.

S. E. Packwood, for appellant.

CAMPBELL, J. Reversed; indictment quashed.

v.5so.no.23-40

HOMICIDE

BOURN v. STATE.

(Supreme Court of Mississippi. March 4, 1889.)

EVIDENCE.

On a prosecution of one for manslaughter, for the killing of his child, it was shown that the defendant had cruelly whipped the child, and that the child afterwards died; but the physician who attended the child said that he could not swear that the death was the result of the punishment inflicted. Held, that a verdict of guilty would be set aside.

Appeal from circuit court, Lawrence county; A. G. MAYERS, Judge.

Willis Bourn, the appellant, was indicted for manslaughter. He had cruelly whipped his child. The child afterwards died. The testimony of the physician who attended the child was to the effect that he could not swear that the death was the result of the punishment inflicted by appellant. lis Bourn was convicted, and sentenced; hence this appeal.

A. C. McNair, for appellant. T. M. Miller, Atty. Gen., for the State.

Wil

COOPER, J. We think the evidence wholly insufficient to prove that the deceased came to his death by reason of injuries inflicted by the appellant. The record discloses a brutish parent, and a helpless child cruelly punished, but the facts proved fall far short of establishing that death was caused mediately or immediately by the punishment inflicted. The jury, naturally inflamed against the defendant by the evidence of his inhumanity, found upon insufficient evidence connection between his act and the death of the child. The judgment is reversed, and cause remanded.

MURPHY . STATE.

(Supreme Court of Mississippi. March 4, 1889.)

STATUTES-CONSTRUCTION-"TOWN."

In a prosecution for keeping a private boarding-house in Mississippi City (which the evidence showed was not an incorporated town) without paying a privilege tax as required by a statute making it a misdemeanor to keep a private boarding-house in a "town" without paying such tax, the question whether Mississippi City was a "town" or not, within the meaning of the statute, was a question of fact for the jury, and the court erred in charging that it was a town.

Appeal from circuit court, Harrison county; S. H. TERRAL, Judge. Appellant, William B. Murphy, was indicted for keeping a private boarding-house in Mississippi City, (which is not an incorporated town,) for fail ure to pay a privilege tax as required by the law, which makes it a misdemeanor to keep a private boarding-house in a "town," and to board any one other than students, without first paying such privilege tax. On the trial the court instructed the jury that Mississipi City was a "town," within the meaning of the statute, and, judgment being rendered against Murphy, he appeals.

Seal & Evans, for appellant. T. M. Miller, Atty. Gen., for the State.

ARNOLD, C. J. The court should not have instructed the jury that Mississippi City was a town. The testimony showed that it was not incorporated, and whether it was a town or not was a question of fact to be determined by the jury, and not by the court.

The word "town," as used in the statute which imposes a privilege tax on a private boarding-house in a town, does not refer exclusively to incorporated towns. In Railroad Co. v. Jordan, 63 Miss. 458, the terms "town, city, or village" in the statute regulating the speed of locomotives and cars, were con

strued to mean "incorporated town, city, or village," from the fact that the statute authorized suit to be brought for its use by any town, city, or village in which the statute was violated, to recover the penalty for its violation, and this implied that they should be incorporated, and capable of suing.

A town, in its popular sense, has been defined to be a congregation of houses so reasonably near each other that the inhabitants thereof might be fairly said to dwell together. Reg. v. Cottle, 16 Q. B. 412; Elliott v. Railway Co., 2 Exch. 724; Directors v. Blackmore, L. R. 4 H. L. 610. "The meaning of the word 'town,'" says Bishop, "varies more or less with the connection and the subject. It may include cities or incorporated villages, or a mere congregation of dwelling-houses, not incorporated." Bish. St. Crimes, § 299a. We think this is the sense in which the word is used in the statute in question, and that it may include an incorporated as well as an unincorporated town.

Judgment reversed, and a new trial awarded.

BURNLEY V. Tufts.

(Supreme Court of Mississippi. March 4, 1889.)

SALE-CONDITIONAL-DESTRUCTION OF THING SOLD.

Defendant bought a soda fountain from plaintiff, giving him notes payable one each month, expressing the consideration, and stipulating that the title to the fountain did not pass till all the notes were paid. Defendant's store burned after he had received possession of the fountain and paid several of the notes, and the fountain was destroyed. Held, that he was none the less liable on the unpaid notes.

Appeal from circuit court, Copiah county; J. T. WHARTON, Judge.

The appellant, M. D. Burnley, bought of the appellee, James W. Tufts, a soda fount, which was to be paid for by the month, each of said payments being evidenced by the following promise in writing, one given for each month: "$10.00. HAZLEHURST, MISS., June 5, 1885.

"For value received - after date I promise to pay to the order of James W. Tufts ten dollars, with interest, 6 per cent. The consideration of this and other notes is the following described soda-water apparatus: [Here follows description of apparatus.]

"Nevertheless it is understood and agreed by and between me and the said James W. Tufts that the title to the above-mentioned property does not pass to me, and that until all said notes are paid the title to the aforesaid property shall remain in said James W. Tufts, who shall have the right, in case of nonpayment at maturity of either of said notes, without process of law, to enter and retake, and may enter and retake immediate possession of said property wherever it may be, and remove the same. Payable at the Merchants' and Planters' Bank, Hazlehurst, Miss. M. D. BURNLEY."

Burnley paid several of these notes, and his store, including the soda-water apparatus, was burned, and he refused to pay the remaining notes as they became due. Whereupon Tufts brought suit to enforce the payment of said remaining notes, and recovered judgment, from which Burnley appealed. H. C. Conn, for appellant. H. B. Mayes, for appellee.

COOPER, J. Burnley unconditionally and absolutely promised to pay a certain sum for the property the possession of which he received from Tufts. The fact that the property has been destroyed while in his custody, and before the time for the payment of the notes last due, on payment of which only his right to the legal title of the property would have accrued, does not relieve him of payment of the price agreed on. He got exactly what he contracted

for, viz., the possession of the property, and the right to acquire an absolute title by payment of the agreed price. The transaction was something more than an executory conditional sale. The seller had done all that he was to do except to receive the purchase price; the purchaser had received all that he was to receive as the consideration of his promises to pay. The inquiry is not whether, if he had foreseen the contingency which has occurred, he would have provided against it, nor whether he might have made a more prudent contract, but it is whether by the contract he has made his promise is absolute or conditional. The contract made was a lawful one, and, as we have said, imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation the court must make a new agreement for the parties, instead of enforcing the one made, which it cannot do. Manufacturing Co. v. Cole, 4 Lea, 439; Keitt v. Counts, 15 S. C. 493.

The judgment is affirmed.

WATTS v. PATTON.

(Supreme Court of Mississippi. March 4, 1889.)

PARTNERSHIP-DISSOLUTION-ACCOUNTING.

A firm being insolvent, one of its members, P., prevailed on B. to buy up the creditors' claims, and arranged with him to buy out his partner, W., for a sum of money, and give him a partnership. He told W. of the arrangement which was concluded. Thereafter W. filed his bill, charging that P. had made a better arrangement for himself than for his partner, and asking that his release of his interest in the firm assets be rescinded. Held demurrable for failure to show injury to W.

Appeal from chancery court, Clarke county; S. EVANS, Chancellor. Appellant, John Watts, and appellee, Patton, were merchants doing business under the firm name of Watts & Patton. The firm became involved, and made an assignment, whereupon creditors attached. Watts & Patton endeavored to make a compromise with their creditors in order to resume business, but failed to do so; whereupon Patton procured one Bonner to buy up the claims of the creditors on terms satisfactory to Bonner and the creditors, and to take the assets of the firm of Watts & Patton. Patton told Watts of the arrangement made with Bonner, by which Watts was to receive $2,500 and a certain mortgage from said Bonner on Watts' entering into a contract to release all claim and interests in the old firm's assets, while Patton was to get no money, but would be given by Bonner a three-years partnership in the new business. Watts executed the contract proposed for the consideration named, and the new business, conducted by Bonner & Patton, was carried on. It turned out after some time that Bonner & Patton separated; Bonner taking his share of the goods, and engaged in business at one point, and Patton his share at another. Watts, conceiving that Patton had secured more of the assets of the old firm of Watts & Patton than he himself had received, brought this bill, charging that Patton had made a better arrangement for himself than he did for his partner, Watts, and asking that the contract executed by himself releasing his claim and title to the assets be canceled, and for an account between himself and Patton. The defendant, Patton, demurred to the bill. The demurrer was sustained, and Watts asked leave to amend his bill, without stating in what respect he desired to so amend, which the chancellor refused, and dismissed his bill, whereupon Watts appealed.

D. W. Heidleberg, for appellant. J. S. Hamm and Witherspoon & Witherspoon, for appellee.

COOPER, J. The averments of the bill are so vague and indefinite that it is impossible to say what are the facts relied upon by the complainant for relief. If Bonner paid all he undertook to pay, and in consideration thereof